Ask The Lawyer, CALLED BACK TO WORK, BUT WE STILL HAVE KIDS AT HOME!

CALLED BACK TO WORK, BUT WE STILL HAVE KIDS AT HOME!

QUESTION:  I have been working from home since the middle of March under the emergency coronavirus order. My husband was laid off in April. He will be called back to work if the emergency order is lifted in a couple of weeks. We have two school age children. With both of us at home, even though I’ve been working, we’ve been able to take care of them. If he’s back at work, I don’t know how I’ll manage. I can’t find a summer camp or day camp take care of them. What do we do?

ANSWER: You may be in luck. The Families First Corona Response Act, passed by Congress in March, requires employers to grant 12 weeks’ leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) for people in your situation. The entire 12 weeks may be paid for those, like you and your husband, who are “caring for a child whose school, daycare, or child care has been closed or is unavailable due to COVD-19.” (Workers who have been advised to self-quarantine because of COVID 19, or who are experiencing symptoms of the disease and are waiting for a medical diagnosis, are eligible for 80 hours paid sick time, but not the 10 weeks of emergency leave.)

However, there may be a few barriers in the way of eligibility.

First, although the laws apply to employers with 500 or fewer employees, there is a potential carve out for those with fewer than 50 employees. Small employers may not be exempt from granting leave if doing so would prevent the business from operating “at a minimal capacity”; if the absence of the employee seeking leave would pose “a substantial risk to the financial health or operational capacity” of the business because of the employee’s “specialized skills, knowledge of the business, or responsibilities”; or if the employer would not be able to find enough able and qualified workers to take over and enable the business to keep operating at minimal capacity. If either you or your husband work at a small business, you might not be allowed the time off.

Second, leave is only available to employees who have been working for at least 30 days, and the 30 days must immediately precede the leave request. If your husband was laid off, and has not been working for over a month, he may not be eligible for leave. That would mean you would need to request time off.

Since you work from home, you should anticipate some pushback from your employer. To be eligible for leave, you must provide a written statement that you are unable to work because of the need to stay home to take care of your children and must also make a “representation that no other suitable person will be caring for the Son or Daughter.”

Your employer may argue that you should be able to structure your day so that you are able to both work and take care of your children. However, the law does not differentiate between those who are unavailable because they are working at home or away from home. The Department of Labor has stated that leave may be available to employees working remotely.

If you are granted leave, your husband would not be eligible (and vice versa). The law only allows leave to take care of children for one caregiver at a time.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com

www.gwinnlegal.com

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