New Jersey Employment Lawyers Blog
As schools scramble to figure out how best to reopen in a couple of weeks, with many opting for a fully remote start to the school year, teachers in some districts are faced with an all too familiar problem for working parents. How will they manage teaching in person and caring for their own kids at the same time? In towns that had planned to reopen with in person instruction, an increasing number of teachers whose children will be at home learning remotely are availing themselves of the 12-week leave available to them under the Families First Coronavirus Response Act (FFCRA). This leave will allow them to care for their own children while many school buildings and childcare centers remain closed.
The FFCRA is a temporary expansion to the Family and Medical Leave Act (FMLA) that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply through December 31, 2020 to covered employers (those with between 50 and 500 employees) and any employee who has been employed for at least 30 days. Employees can request leave at any time, for several reasons, including because the employee must quarantine, a dependent of the employee must quarantine, or for childcare when the child’s school or usual childcare provider is closed or unavailable for reasons related to COVID-19. When the leave is requested for childcare, employees are entitled to up to 12 weeks of partially paid leave that is subtracted from what would otherwise be their FMLA time. Employers of healthcare workers and first responders can opt out of providing this leave, and employers with fewer than 50 employees can opt out of granting leave requests specifically for childcare issues if granting the request would jeopardize the viability of the business.
Teachers who suffer from disabilities may also be entitled to accommodations, including leave of absence, if they can show the requested accommodation is reasonable and supported by medical evidence. The Law Against Discrimination prohibits employers from discriminating against disabled employees in connection the terms and conditions of their employment. The Law Against Discrimination also requires employers to engage in an interactive process with disabled employees who are in need for assistance, and provide them with reasonable accommodations, unless they can show it would be undue hardship on the school’s operations to provide the accommodation.
Teachers’ use of leave has the potential to force their districts to switch from in person models to all remote learning due to a shortage of teachers who can be present in the school building. For instance, in Berkeley Heights enough high school teachers requested FFCRA leave to force the district into a remote learning model for grades 9-12 even though the district’s in person hybrid plan had already been approved by the Department of Education and the school’s buildings have been deemed safe for an in person return. Superintendent Dr. Melissa Varley said 17 of the 90 high school teachers have made leave requests, and the vast majority are FFCRA requests. Because the district has been unable to find enough replacements or substitute teachers, it has no choice but to switch to an all remote start to the school year. Dr. Varley said “we need teachers to be in our buildings to operate under our [in person] approach.” She said the district is awaiting official approval from the state for the all-remote start. In a letter to parents, Dr. Varley also prepared them for the possibility that the same challenge could still present itself in the lower grades as she expects to receive more requests for FFCRA leave in the coming days.
Dr. Varley also acknowledged the pushback she has received from parents. In Berkeley Heights, only 18% of parents opted to have their children start school remotely. The backlash from parents in the community has been significant, with anger and frustration directed at both school administration and the teachers who have requested leave. Some parents have called for teachers to have their pay cut, pushed into retirement, forced to resign, or to have the administration refuse to allow teachers to rescind their leave requests now that the district has switched to remote learning.
For teachers taking leave to care for their children, they will get paid 2/3 their regular salary, up to $200 per day and $12,000 in the aggregate (over a 12-week period). The districts that employ these teachers are prohibited from firing, disciplining, or otherwise discriminating against any teacher who takes paid leave under the FFCRA or seeks to enforce his or her rights under the Act. If an employer is found to be in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable), the employer is subject to the enforcement provisions of the FMLA.
The FFCRA is a stop gap measure that temporarily protects primary caregivers from being forced to quit their jobs or piece together uncertain childcare arrangements so that they can work. Although Senator Cory Booker recently proposed legislation that would provide primary caregivers with permanent protection from discrimination and adverse employment consequences related to their childcare responsibilities, that legislation has yet to pass. Given the outrage directed at teachers for exercising their right to FFCRA leave in order to care for their children, at least in one school district, it is apparent that workplace protections for primary caregivers are just as necessary now as they ever have been, and more employees are in need of them than ever before.