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Worried about work, childcare? Find out legal protections for working parents

Can you take extra leave? Do you have a right to work from home? An employment lawyer answers all your questions about returning to the office.
TODAY Illustration

As the coronavirus pandemic continues but economies re-open, more and more parents are finding themselves called back to the office, often juggling concerns about kids, childcare, and safety.

TODAY Parents spoke to KellyWilliams, employment attorney and managing partner of Slate Law Group — who is also a mom of three young children — about what rights and protections parents have during this time. Alison Green, a manager who operates the popular workplace advice site, gave tips on how parents can talk to supervisors and bosses to get the support they need.

What laws exist to protect parents during this time?

Shortly after the pandemic began to sweep the United States and more businesses started shifting their operating processes, the Families First Coronavirus Response Act was formed. This act is the only piece of legislation designed to help families, but Williams said it can be a great place for parents to start.

"(The act) offers 12 weeks of partial paid leave for working parents," said Williams. "I say partial because it's capped at $200 a day, or $12,000 over the total of 12 weeks, but (parents) can take it at any time through 2020."

Aerial View Of Mother Working In Office At Home With Daughter
If you need extra time off to take care of a child, the Families First Act can provide some support. Getty Images

The act allows parents to collect two-thirds of their income while on leave.

The act also allows for extra sick time for parents, which can be used to care for children, and Williams said that it can even be used if a daycare or school is physically closed.

"They can use 80 hours, under the act," said Williams. "If it's physically closed for the purposes of COVID, the paid sick leave kicks in. Just because the school is still functioning on Zoom or otherwise physically closed, the Families First Act allows you to take that extra 80 hours of sick leave."

How to talk to your boss about it:

Green said that if you have to take leave provided by the Families First Act, it can help to propose a middle-ground solution.

"If you could potentially do your job from home, you can propose that, and you can sort of contrast those two options," She said. "You can say, 'Ideally, I would like to do my job from home, because that way I'm able to continue performing my role, but if that's not feasible, then the other option I'd be looking at is taking leave under this new law.'"

"I think you would approach it as 'I've been trying to make this work, but it's really tough to pull it off for the following reasons," Green continued.

Does my employer have to let me work from home?

While there are some protections that allow parents to stay home with their children, both Williams and Green said that there is nothing that requires an employer to let someone work from home, even if they have been working from home for the past several months. However, Williams said that she cautions her clients about ordering employees to return to work too soon.

"I tell my businesses to be extremely careful in forcing working moms and dads back to work," said Williams. "If they were able to work remotely and do their job in a professional and timely manner, and if working remotely is still an option for them, I tell them to try to allow them to continue to do so to the extent that they're still doing their job."

Smiling female architect using phone while sitting at home office
Your employer doesn't have to let you work from home, but it's possible to negotiate an arrangement based on the past few months. Getty Images

How to talk to your boss about it:

If your boss isn't being flexible about working from home but you've been able to do so successfully in the past, Green recommends connecting with your employers to try to bring the issue up as a group.

"As a group, your'e going to be much harder to ignore," she said. "If there's just one of you, it's easier to dismiss your concerns, but if it's a whole bunch of you, you're going to carry more weight, and they're going to be more cautious to actually engage with the concerns you raised."

Green also points out that this method gives employees more protection.

"Reaching out with a group, rather than just doing it alone, gives you some legal protection," she said. "It's the same law that protects unionizing, protects employees who organize with other colleagues around wages or working conditions, and this would fall under working conditions. They can't legally retaliate against you for doing that if it's a group of you."

What if I live with someone who is high-risk?

If you live with someone who is high-risk and your boss is no longer allowing you to work from home, you may be able to invoke pre-existing legislation, such as the Americans with Disabilities Act (ADA).

"As long as the ADA applies or you have a similar state law in your state that applies, you can get a doctor's note, ... and it depends on the specific situation, but that is something that, in the right situation, that would be covered under the ADA," said Williams.

Shoreditch Office
If you think going back and forth to the office will put your family or roommates at risk, it's important to talk to your boss and consider using the ADA for extra protection. Getty Images

However, the ADA isn't one-size-fits-all. Williams describes it as a "balance" between what the employer needs and what the employee needs, since an ADA claim can be denied if a business cannot reasonably accommodate an employee's requests or if it would create undue hardship for the business.

How to talk to your boss about it:

Green said that one small silver lining of the pandemic is that employees aren't bringing up anything "new or surprising" when asking for accommodations due to risk.

"You can start by saying, 'I'm trying to figure out how to navigate this, and I'm looking at what's feasible for me,'" she said. "Kind of lay out what you're hoping for, and it's good to go into the conversation knowing, to the extent you can, what outcome you're looking for."

She recommends using the same technique as if you are generally asking to work from home: Reach out with a group, and do what you can to reach a compromise that allows you to get your work done while caring for children.

Mid adult father swinging cheerful daughter in living room at home
Working with your boss can help you come up with a solution that works for everyone involved. Getty Images

Do I have to worry about being discriminated against?

Williams said that parents should keep an eye out and make sure they aren't being discriminated against as employers begin to bring people back into the office.

"I had a lot of conversations with employers about making sure that when they're bringing people back, they're not essentially saying 'This person has to take care of their kids, so we're going to bring back the people without children,'" she explained. "That again is discriminatory. You can't discriminate against working parents."

Williams said that she recommends employers "be very, very careful," and base any changes in employment status on performance reviews.

"Their job has to be offered back to them, there has to be a reason why (an employee) needs to come into the office if they can work remotely without any issues," she said. "I also advise them against letting anybody go who has kids ... If you as an employee feel you were wrongfully terminated, and you even have a feeling that it was because you are either pregnant or have kids that you have to care for, you should definitely talk to an attorney about your rights. They're going to be protected under federal laws."