Prior to the pandemic, for most employers, children going back to school was a cause for
celebration. With children on a regular routine, working parents’ availability became more
routine and, outside of holiday periods with school closures, fewer vacations were scheduled.
For business owners, this created a level of predictability for scheduling, which was desirable for
obvious reasons. Unfortunately, since the pandemic, predictable employee scheduling has been
a near impossibility. This year, even with schools mostly returning to normal schedules, the
possibility of exposure-related quarantines for students continues to complicate scheduling
decisions. Further complicating the issue is the uncertainty around whether any paid leave
mandates apply to absences due to childcare issues created by school-mandated quarantines.
For employers who voluntarily opted into the additional paid sick and family leave for
COVID-related illnesses under the American Rescue Plan Act, those illnesses would have been covered under that law until September 30, 2021. The amounts paid to employees for paid leave
would be also eligible for the tax credits provided under the law. However, starting October 1, 2021,
the issue is more complicated as the tax credits provided under the American Rescue Plan Act
ended. For most employers, this means that the entitlement to additional paid leave would have
ended, leaving employees with limited legal protections.
Other than the optional extension of paid sick and family leave under the American
Rescue Plan Act, most leave mandates under Maryland and federal law are limited to caring for
family members suffering from an actual illness, injury, or disability. At first blush, none of them
appear to mandate that employers provide leave, whether paid or unpaid, to employees unable to
work due to childcare needs caused by a child’s mandatory quarantine from school. As a result,
employers will retain a lot of discretion in how they will formulate their policies and procedures
related to leave to care for a child who is unable to attend school because they have been exposed
to another student who has tested positive with COVID-19. In practice, though, employers will need
to be careful when implementing and applying a policy related to leave and discipline for
employees unable to work due to childcare issues since unequal or uneven enforcement of such
rules can be an immediate source of liability for employers. For example, if certain employees
or classes of employees are provided with differing levels of leave or there is a perception that
certain employees are being treated more harshly in response to requests for time off, employers
may still face charges or claims of unlawful discrimination.
If you have questions about how to implement or enforce a leave policy for employees
who are unable to work due to a child’s quarantine from school, please contact one of our
attorneys at (410) 522-1020 to set up an appointment to discuss how your policies can be
structured to meet your company’s goals.