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October 2020


Covid-19 and the Caregiving Crisis

By Leanne Fuith and Susan Trombley

1020-caregiver-WFHThe covid-19 pandemic has disrupted every aspect of life. Since March 2020, Minnesota families have navigated a new normal that no longer includes access to regular care for their children or other vulnerable family members. At the end of July, Gov. Tim Walz announced a return-to-school framework for the 2020-2021 school year that includes hybrid learning with strict social distancing, and capacity limits or distance learning for most Minnesota school districts. All Minnesota school districts face a likely shift to a distance learning model with little warning if local, regional, or statewide covid-19 metrics worsen significantly. 

Amid this uncertainty, employees with caregiving responsibilities are being asked to return to or continue working in the face of quite possibly shuttered schools and the absence of daycare centers. Parents like Molly and Jim both worked from home prior to the covid-19 pandemic. Under the terms of their employment, they had to have childcare for their seven-year-old son or face termination. In January 2020, Molly began making plans for summer childcare for their son, who has special needs. Then covid-19 hit. Businesses, schools, and childcare centers shuttered almost overnight as people began to work from home. As the weeks passed, it became apparent that summer childcare options would be virtually non-existent. Fortunately, Molly’s company walked back its policy requiring childcare for parents who work at home and Molly’s son was able to remain home during the workday. Now, with another school year underway and their son likely unable to return to school in-person on a full-time basis, Molly is once again worried about how she will be able to manage. 

With the start of the new school year, Minnesota parents and caregivers are forced to strike a precarious balance between remaining healthy, caring for children and vulnerable family members, and fulfilling their professional and workplace obligations. Similarly, Minnesota employers are balancing the need to return to business as usual with their moral and legal obligations to support their workers during a continuing public health crisis. As the economy reopens with restrictions on school and available childcare, many Minnesota caregivers risk being treated adversely in the workplace because of their caregiving responsibilities—and the foreseeable impacts include workplace discrimination, retaliation, and termination.

 

Employment laws protecting Minnesota caregivers 

Minnesota is among nearly 100 states and cities with laws that prohibit caregiver discrimination, also known as “family responsibilities discrimination.”1 Caregiver discrimination was on the rise even before the pandemic. Between 1998 and 2012, family responsibility discrimination case filings increased 590 percent while the number of employment discrimination cases filed in federal courts decreased 13 percent.2 Employee caregivers are not a protected class under either Minnesota or federal law, so claims for family responsibilities discrimination must be raised under the current protections that exist for employees under the law.

Normally when a child or other family member becomes ill, caregivers experience a challenging but brief impact on their professional commitments—such as reduced working hours or difficulties in performing their jobs. In addition to paid time off, laws like the Family Medical Leave Act3 (FMLA) are in place to protect working caregivers by offering up to 12 weeks of unpaid leave to care for the serious medical condition of a family member. Federal and state anti-discrimination laws also prohibit discrimination based on sex, pregnancy, and association with people who have disabilities. 

The professional impact of the pandemic on employees with caregiving responsibilities has been significant and protracted. And the protections available under the law are insufficient to protect Minnesota caregivers who, in the absence of school and daycares, have been forced to take extended time away from their work obligations to care for children. On March 18, 2020, in the early days of the pandemic, The Families First Coronavirus Response Act (FFCRA) was signed into law to bring relief to American workers and promote public health by providing paid leave and expanded unemployment benefits and food assistance for vulnerable children and families.4 But the time-limited relief offered by FFCRA failed to take into account the duration of the covid-19 crisis.

The FFCRA, which under current law will be continued only until the end of 2020, requires employers with fewer than 500 employees to provide employees with paid sick leave or expanded family and medical leave for reasons related to covid-19.5 Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (which includes being unable to telework) because the employee:

 

n  is subject to a federal, state, or local quarantine or isolation order related to covid-19 or is caring for an individual subject to such an order;

n  has been advised by a health care provider to self-quarantine related to covid-19 or is caring for an individual who has been advised to self-quarantine;

n  is experiencing covid-19 symptoms and is seeking a medical diagnosis; or

n  is caring for a child whose school or place of care is closed or unavailable for reasons related to covid-19.6

The FFRCA provides a full-time employee with up to 80 hours of paid leave, and a part-time employee with the number of hours that the employee works on average over a two-week period, for quarantine or isolation orders, self-quarantine, or seeking a medical diagnosis.7 

A full-time employee who has been employed by the covered employer for at least 30 days qualifies for an additional 10 weeks of partially paid leave at 40 hours per week if the employee is caring for a child whose school or place of care is closed (or whose childcare provider is unavailable) for reasons related to covid-19.8 A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.9 Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.10

During the period of allowed leave, employees must be paid at their regular rates (or the applicable minimum wage, whichever is higher) if they are subject to a federal, state, or local quarantine or isolation order related to covid-19, or have been advised by a health care provider to self-quarantine related to covid-19, or are experiencing covid-19 symptoms and seeking a medical diagnosis.11 Caregivers get a lesser deal: Employees who are providing care for others subject to these restrictions or who are caring for a child whose school or place of care is closed or unavailable for reasons related to covid-19 is entitled to be compensated at only two-thirds of their regular rate of pay (or two-thirds of the applicable minimum wage, whichever is higher).12

In addition to the FFCRA, employees may also have limited protections under the Americans with Disabilities Act13 if they are caregiving for a disabled spouse or child, or the Pregnancy Discrimination Act, which provides protection against discrimination to women on the basis of pregnancy, childbirth, or related medical conditions.14 Gender discrimination laws may also provide some limited protection if caregivers are retaliated against in the workplace and can demonstrate that the discrimination is occurring to employees of a certain gender with the additional shared characteristic of being a caregiver.15

The FFCRA provides broader protection than the Family Medical Leave Act16 (FMLA) and the Minnesota Parental Leave Act,17 which both grant certain employees rights to take protected leave to care for family members and return to their employment without retaliation, but the FFCRA remains insufficient given the ongoing nature of the pandemic.18 

Gaps in the law that leave 

Minnesota caregivers vulnerable 

Despite the expanded protections of the FFCRA, many Minnesota families are still left vulnerable in the current caregiving crisis. Under the FFCRA, covered employers only include certain public employers and private employers with fewer than 500 employees.19 This leaves employees of private employers with 500 or more employees and most employees of the federal government (who are covered by Title II of the Family and Medical Leave Act) without the expanded family and medical leave provisions of the FFRCA.20 

The FFCRA also does not cover grandparents or other non-parental caregivers who work and may also be assisting in the care of their grandchildren. Nationwide, about 1.3 million grandparents in the labor force are responsible for caring for their grandchildren.21 In addition, the FFCRA provides an exemption for small businesses with fewer than 50 employees if an employee’s required leave due to school closings or childcare unavailability would endanger the viability of the business.22  

Due to the continuing nature of the pandemic and the short-term relief provided by the FFCRA, caregivers whose children cannot return to school or childcare—because those services are unavailable or because the children are immunocompromised—have no safety net under the law beyond the 10 weeks of expanded leave provided by the FFCRA. For most Minnesota families, that expanded leave has ended, or will end very shortly, leaving caregiving employees without legal protection and reliant on the goodwill of their employers as they face an uncertain school year ahead.  

Finally, many caregivers face unemployment because of the pandemic and will seek unemployment benefits, but there is continuing uncertainty around how long those benefits will last and how much relief they will provide.23 

Impact of covid-19 on primary caregivers in Minnesota families; disproportionate impact 

on women caregivers and women of color  

The caregiver-employee conflict is a problem for most working Americans. A recent study showed that almost every employee will become a caregiver at some point in their career.24 Additionally, an estimated 43.5 million adults provide unpaid care to an adult or child with special needs, and 50 percent of all employees expect to provide elder care in the near future.25

Employees with caregiving responsibilities frequently face adverse actions in the workplace, including exclusion from job opportunities based on assumptions about the employee’s caregiving obligations, differential treatment compared to other employees, and materially adverse actions undertaken by their employers.26

Caregivers are protected against discrimination and retaliation by their employers, but litigation involving allegations of caregiving discrimination have been on the rise over the past decade.27 Since April 2020, six dozen coronavirus-leave lawsuits have been filed in federal courts and a spike in litigation is expected this fall before the FFRCA expires.28 

Claims of caregiver discrimination are primarily brought by working mothers—and working mothers of color are particularly impacted.29 A growing segment of the workforce (known as the “sandwich generation”) is caring for children and a parent simultaneously.30 Studies show that women who carry significant responsibility in the area of caregiving for children or elderly parents suffer a penalty relative to non-mothers and men; the penalty shows up in the form of lower perceived competence and commitment, higher professional expectations, lower hiring and promotion rates, and lower salaries.31

Mothers are disproportionately responsible for most caregiving duty.32 Working women, especially those in jobs with low wages or nontraditional hours—which are often held by women of color—have long struggled to manage work and caregiving.33 The pandemic has exacerbated those stresses to historic levels.34 In April 2020, the female labor force participation rate dipped below 55 percent for the first time since 1986, and estimates suggest that women’s jobs are currently 1.8 times more vulnerable than those of their male counterparts.35 

Guidance for Minnesota employers (and their lawyers) regarding return-to-work scenarios

Minnesota employers face difficult challenges as the covid-19 pandemic persists. In March 2020, most Minnesota businesses were forced to shutter or convert their operations to remote work under Gov. Walz’s emergency peacetime orders. Since that time, many businesses have remained closed and many of those that reopened have been unable to operate at full capacity. Many businesses have also incurred extraordinary expense to convert their operations to remote work and have seen productivity decline as employees navigated fulfilling their workplace responsibilities while caring for children or other vulnerable family members (or themselves if they have become sick). 

Six months into the pandemic, Minnesota businesses are developing complex, phased return-to-work scenarios amid increasing case numbers. Businesses are being forced to assess whether they can continue to offer the same level of flexibility to their employees with caregiving responsibilities as they did in the early days of the pandemic. The patchwork federal, state, and local leave laws that have left millions of working caregivers without legal protection have likewise raised questions for employers trying to comply with changing legal requirements and support the caregivers who work for them.

During this time, employers should be careful not to make employment decisions that, even inadvertently, run afoul of the laws protecting caregivers and instead offer their caregiving employees as much flexibility and understanding as reasonably possible under the circumstances. 

Taking leave to care for children may be the best option for some working caregivers, but it’s not a realistic option for many others. Employers should ask or survey their employees who are caregivers about what they need and include them in all planning and decision-making. Where possible, employers should continue to offer caregivers the option to telework or assist them in exploring work-sharing arrangements or opportunities to reduce hours without sacrificing job security.  

Employers should also allow employees with caregiving responsibilities to shift their work hours. Importantly, employers should ensure that the workplace culture gives employees with caregiving responsibilities this flexibility without placing on them an increased burden to participate in day-to-day employment activities, which may be considered discriminatory. Useful steps may include limiting the length of meeting times, avoiding back-to-back meetings where possible, and designating meeting-free time for focused work. These slight shifts in workplace culture benefit everyone in an organization and particularly those employees who are caregivers. Employers should also consider how technology can help employees working non-traditional schedules to more actively engage with management and their colleagues. 

Finally, employers should set clear and realistic expectations with their employees for what work needs to be completed and when it should be done, while allowing employees to determine how the work gets done and allowing them to complete work outside of traditional 9:00-5:00 schedules. 

The pandemic has pulled back the curtain on the gaps in our nation’s childcare system and quickly given rise to a nationwide caregiving crisis. With a lack of traditional childcare and school schedules and the likelihood of increasing rates of covid-19 infections on the horizon, workers with caregiving responsibilities—and their employers—face significant uncertainty and insecurity in the coming months. During this time, employers should offer their workers with caregiving responsibilities as much flexibility as possible and work intentionally to create a workplace culture that establishes clear and realistic expectations and is welcoming and inclusive.

LEANNE FUITH is an associate professor at Mitchell Hamline School of Law, where she teaches courses in business formation and management and lawyer and law student professional identity formation. She previously practiced business law, employment law, and commercial and employment litigation and is admitted to practice in the state of Minnesota. 

SUSAN TROMBLEY is a law librarian in the Twin Cities.

Notes

1 Suzanne Hultin & Tatiana Follett, State Family and Medical Leave Laws, Nat’l Conference of State Legislatures (8/10/2020), https://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx.

2 Cynthia Thomas Calvert, Family Responsibility Litigation Update 2016, The Center for Work Life Law, 6 (2016), https://worklifelaw.org/publications/Caregivers-in-the-Workplace-FRD-update-2016.pdf.

3 Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (1993).

4 Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat 178 (2020).

5 Id. at 189.

6 Id. at 195-196.

7 Wage and Hour Division, U.S. Dep’t of Labor, Families First Coronavirus Response Act: Employer Paid Leave Requirements, https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.

8 134 Stat 178, 189-190.

9 Id. 

10 Id. at 196-197.

11 Employer Paid Leave Requirements, supra 8.

12 It is worth noting that covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA (emphasis added). Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. Employer Paid Leave Requirements, supra 8.

13 Americans With Disabilities Act, 42 U.S.C. §12101 et set. (2018).

14 Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978).

15 Minn. Stat. §363A.08 (2018).

16 107 Stat. 6. Ironically, the FMLA specifically says “due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men.” Id. §2(a)(5).

17 Minn. Stat. §181.941 (2018).

18 New York v. United States Department of Labor et al., No. 20-cv-3020, 2020 WL 4462260 (S.D.N.Y. 8/3/2020). Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York vacated four sections of the FFCRA that, among other things, excluded workers from virtually the entire health-care sector from the FFCRA’s benefits and allowed employers to deny leave if they didn’t have work available. Although it may be appealed, for the moment the court’s decision expands relief to American workers but leaves open many questions for employers who are trying to comply with the law. On 9/11/2020, the Department of Labor issued a temporary rule revising portions of the FFCRA in response to the 8/3/2020 decision from the United States District Court for the Southern District of New York.

19 Employer Paid Leave Requirements, supra 8.

20 While not covered by the expanded family and medical leave provisions of the FFCRA, federal employees covered by Title II of the Family and Medical Leave Act are covered by the FFCRA’s paid sick leave provision. Employer Paid Leave Requirements, supra 8. 

21 Nat’l Family Caregivers Month: November 2019, U.S. Census Bureau, https://www.census.gov/newsroom/stories/2019/family-caregivers.html (last visited 8/1/2020). 

22 134 Stat 178, 199.

23 Tom Crann & Megan Burks, “DEED Commissioner: Other Aid, Jobs Available to Minnesotans if $600 Unemployment Boost Expires,” MPR (7/21/2020), https://www.mprnews.org/story/2020/07/21/deed-commissioner-other-aid-jobs-available-to-minnesotans-if-600-unemployment-boost-expires (Steve Grove, the Minnesota Department of Employment and Economic Development commissioner, stated that “the whole thesis of the [unemployment insurance] program is that if you’re separated from work, through no fault of your own, then you’re eligible. And certainly having to stay home and take care of your child in the middle of a pandemic is not something you can control.”) 

24 Calvert, supra 2, at 13.

25 Id.

26 Id. at 9. 

27 Id. at 6. Family responsibility cases increased 269% over the last decade.

28 “Covid-19 Leave Suits Trickle in With Spike Expected This Fall,” Bloomberg Law, (9/2/2020), https://news.bloomberglaw.com/daily-labor-report/covid-19-leave-suits-trickle-in-with-spike-expected-this-fall.

29 Id.  at 31.

30 Id. at 13.

31 Claire Cain Miller, “The Motherhood Penalty vs. the Fatherhood Bonus,” N.Y. Times (9/6/2014), https://www.nytimes.com/2014/09/07/upshot/a-child-helps-your-career-if-youre-a-man.html; see also Shelley Zalis, “The Motherhood Penalty: Why We’re Losing Our Best Talent to Caregiving,” Forbes (2/22/2019), https://www.forbes.com/sites/shelleyzalis/2019/02/22/the-motherhood-penalty-why-were-losing-our-best-talent-to-caregiving/#17bbce8a46e5. On average, women receive a 4% pay cut for each child they have, while men receive a 6% pay increase for each child they have. Additionally, 71% of mothers with children living at home work for pay. Women are the primary breadwinners in 44% of households with children in Minnesota. 

32 Terry Gross, “Pandemic Makes Evident ‘Grotesque’ Gender Inequality in Household Work,” NPR (5/21/2020), https://www.npr.org/2020/05/21/860091230/pandemic-makes-evident-grotesque-gender-inequality-in-household-work.

33 Women’s Bureau, U.S. Dep’t of Labor, Mothers & Families, https://www.dol.gov/agencies/wb/data/mothers-and-families (last visited 8/1/2020).

34 July’s Job Report: A Women’s Recession, Time’s Up Foundation, (8/10/2020) https://timesupfoundation.org/july-jobs-report-a-womens-recession/ (noting that, in addition to the wage gap, half of Latinx women have had their work hours cut back since the pandemic began and Black women are continuing to see the slowest declines in unemployment during covid-19, while Hispanic women hold the highest unemployment rate).

35 Roberta Kaplan & Rachel Tuchman, “#TimesUp During Covid-19—Private Sector’s Role in Mitigating Gender Equality Crisis,” Bloomberg Law, (9/3/2020), https://news.bloomberglaw.com/daily-labor-report/insight-timesup-during-covid-19-private-sectors-role-in-mitigating-gender-equality-crisis.

 

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