September 2017 - Back to School Issues

With the end of summer, many children will be heading back to school, and many parents will be facing renewed responsibilities with regard to balancing schedules, homework, carpooling and school-related activities. Working parents often are confronted with the need to take time off to care for sick kids, attend teacher conferences and participate in other school activities. It is important for an employer to understand the challenges working parents face in balancing work, school and families, and the best practices for handling these issues in order to make the workplace more productive and efficient as well as avoid any legal issues.

 The following are key issues an employer should consider during the back to school season to effectively manage employees and assist them in balancing work and family responsibilities.

1. Avoid Family Responsibility Discrimination

An employer should avoid engaging in family responsibility discrimination or caregiver discrimination. Such discrimination occurs when an employer treats employees or job applicants differently because of their caregiving responsibilities for young children, elderly parents, partners or spouses.

Examples of family responsibility discrimination include:

  • Failing to promote an employee because the employer believes the employee is more committed to his or her family than his or her job;
  • Asking job applicants about their childcare responsibilities;
  • Failing to promote an employee for fear that family caretaking responsibilities will interfere with his or her ability to perform the job;
  • Making assumptions about and stereotyping employees based on family responsibilities;
  • Discriminating against employees who work part-time, reduced or non-traditional schedules; and
  • Denying female employees with school-age children the same opportunities as male employees with school-age children.

On the federal level, family responsibility discrimination may be actionable under Title VII of the Civil Rights Act (as a form of sex discrimination), the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). Similarly, a handful of states and municipalities have enacted laws prohibiting caregiver discrimination.

Accordingly, an employer should implement and enforce policies prohibiting discrimination, harassment, and retaliation against workers who are caregivers, and make sure that such employees receive fair and equal treatment in the workplace. An employer should also be sure to respond to complaints of caregiver discrimination efficiently and effectively, and promptly investigate complaints, taking corrective and disciplinary action if needed.

2. Remember, It Is Not Just Working Mothers

In today's workplace, employers should be open-minded and realize that it is not just mothers who have caregiving and family responsibilities, but also fathers as well as grandparents and step-parents.

Also, now that same-sex marriage is legal in all 50 states as a result of the Supreme Court's Obergefell v. Hodges decision, an employer should be more tolerant and understanding of non-traditional family structures.

3. Train Supervisors to Communicate With Caregivers

It is critical to train supervisors and managers to communicate effectively with caregivers and respond to requests for reasonable accommodations in the form of leave or time off, altered schedules, flexible work schedules, job sharing, telecommuting or other accommodations. Supervisors and managers should be open, honest and solution-oriented, and try to accommodate reasonable requests for leave, time off or altered schedules based on an employee's family responsibilities, as long as the employee is still able to be productive and fulfill his or her work-related duties and responsibilities. In addition, supervisors should be trained to avoid discrimination and retaliation against caregivers, and refrain from negatively stereotyping employees with family responsibilities. It also may be a good idea to provide employee assistance programs to help reduce and manage stress and improve well-being.

4. Consider Non-Traditional Work Arrangements

Supervisors may want to consider permitting employees to take advantage of non-traditional work arrangements - such as flex time, job shares or telecommuting - if it helps employees manage work and family obligations. However, if an employer chooses to allow employees to engage in a non-traditional work arrangement, the employer should be clear about its expectations. The employee should be held accountable for the same performance standards. If feasible, an employer should work with each employee to find a customized flexible work arrangement that meets the specific needs of the employee and employer. Likewise, it is important to document any agreements or arrangements entered into with respect to reduced hours, telecommuting, work hours, adjusted work schedules, etc.

5. Be Aware of State Leave Laws Regarding School Activities

An employer should be aware that a number of state leave laws allow employees to take leave for reasons such as enrolling in school, attending parent-teacher conferences, addressing behavioral or disciplinary problems, participating in classroom activities and even attending school sporting events, performances and plays (NYS does not have this law). An employer may want to consider incorporating a policy related to time off for school visitation or school-related activities in its employee handbook or reference time off for school activities as one of the uses for a personal leave of absence or paid time off (PTO).

6. Consider Sick and Safe Leave Laws

An employer also needs to consider that an increasing number of states and cities have passed laws and local ordinances that provide for "sick and safe leave" in situations in which a child's school or daycare provider closes due to events such as a public health or weather emergency. For example, Maine, Oregon, and Vermont, as well as Chicago, Minneapolis, New York City, San Diego and Seattle have such laws on the books. An employer also may need to provide paid sick leave and unpaid sick leave to care for a child with a school-borne illness and should maintain policies incorporating these requirements. For more seriously ill children, an employer should also consider whether state family leave or the federal Family and Medical Leave Act (FMLA) applies.

7. Be Aware of Predictable Scheduling Laws

An employer should be aware of the emerging trend of predictable scheduling legislation, which aims to provide employees with increased stability and certainty when it comes to employee schedules and prohibits employers from making last-minute schedule changes. This trend may affect working parents in a positive manner with respect to childcare, school schedules and transportation needs. Among other things, such laws may:

Provide employees with advance notice of their schedules (often two to four weeks);

Provide employees with predictability pay if changes are made within this window, unless employees have requested changes in their schedule;

Require an employer to provide employees with a good-faith estimate of how many hours they will actually work, as well as whether they will be required to be on call;

End the practice of "clopenings," in which employees are required to work a late night shift followed by an early morning shift or back-to-back shifts without adequate rest in between;

Require an employer to provide employees with additional compensation if the employee handles a "clopening" or back-to-back shifts;

Allow employees to request to work certain hours or schedules and in certain locations, and require that employers engage in the interactive process with employees and discuss these requests with employees in good faith; and

Require an employer to offer shifts to existing employees before seeking to hire new employees.

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