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Jan 26, 201710:13 AMLaw at Work

with Jessica M. Kramer and Ashlie B. Johnson

Must I allow my employees time off when their child’s school is closed?

(page 1 of 2)

Probably not, but a good employer is careful in enforcing any time-off policies, even those that may appear to be innocuous.

Madison schools closed yesterday to the shock of many parents, including me. I respect the decision and do not envy the tough call district officials have to make in the wee hours of the morning when weather forecasts are often hit or miss. School closings affect not only children and employees of school districts, but also another large sector: all other employers.

Many parents think, “Yippee, it’s back to PJs and I can build a snowman with the kids later!” But for many others a decision must be made, and quickly, regarding childcare/backup options. With this decision come many questions: Do I go in to work?  Can I use paid time off (PTO)? Should I? Will not going into work today have an adverse impact on my work life in the future?

A large majority of employers are used to being flexible and understanding when employees have things come up, including kid-related things. We employers are, after all, humans too. However, even the biggest-hearted employers may wonder, albeit secretly: Do I have to allow Dominique or Alfred the day off to stay home with the kids? Can I penalize each with a negative attendance mark? The business isn’t taking a snow day, and Dominique’s or Alfred’s job isn’t going to do itself.

Neither Wisconsin law, nor federal law, provides for leave that is directly related to school or the lack thereof. Let’s examine some other laws that might come into play.

Family and Medical Leave Act (FMLA): Do the Wisconsin or federal FMLA laws kick in when an employee seeks time off to care for a child? That child is “family” so it must, right? No, probably not. FMLA covers, in summary, leave related to the medical care of a family member (including a child), the birth or adoption of a child, or the military service of a family member. Caring for a child on a day that school is closed is not considered providing medical care. FMLA is a big complex statute, and could probably take up 10 or more blog articles, but for now keep in mind that FMLA also only applies to employers with 50 or more employees, and to certain employees who have met eligibility requirements.

So, FMLA does not provide employees with protected leave to care for kids in this circumstance. And school-related leave doesn’t exist. Does that mean, as an employer, I’m safe giving Dominique or Alfred a verbal warning for not coming in today to stay home with kids? Not so fast.

Believe it or not, gender discrimination has been analyzed by courts in employer’s actions in allowing and denying leave in situations involving the care of children. Historically, females have taken the laboring oar in childrearing at home. Even as women entered the workforce in increasing numbers, women remain more likely to take off work to stay home with a child versus men. The reason may vary from family to family — her job is more flexible, he makes more money so it makes economic sense for the household, the child is more attached to mom, etc. However, because the idea of the mother being the primary caretaker of the children is so ingrained in our culture, even the most equality-conscious employer may assume that, in the case of a male employee, for example, his wife should be able to stay home, so why should he have to miss work? This kind of thinking can lead to discriminatory enforcement of policies.


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Jan 26, 2017 02:19 pm
 Posted by  Anonymous

Another thing to consider is the type of work you do. If you are running equipment for example, does you not being at work affect others that need to do their jobs downstream from what you do. Will not showing up for work negatively affect your clients as the work you do for them may be directly related to whether or not you are on the job. Some jobs have more flexibility and afford someone to work at home. Others, not so much

Jan 26, 2017 02:36 pm
 Posted by  Anonymous

I agree with what you say Jessica. I just think it is more ironic how much people complained a week or two earlier when they didn't cancel school in Madison and now get flack for cancelling. Can't win either way.

Jan 26, 2017 04:58 pm
 Posted by  Anonymous

One thing to think about is days schools close are also dangerous driving days - when I lived in the country I was glad my job was flexible and allowed me to work at home during extreme weather.

Depending on the child care market parents can arrange in advance for options for emergency child care - programs don't like to do that as the child care economy in this country (as opposed to other industrialized nations) is run totally on the free market and the free market favors 100% full time enrollment a you lose money otherwise.
If there are a lot of openings programs though will provide drop in care even if they don't list it on their referral options at www.4-C.org- there are tons of referral sites on line the 4-C site has stronger data as they work with providers in other ways and thus searches can be more targeted.

Either way child care is a major issue even when school is not disrupted - the key challenge right now is like every other business sector finding workers but every child care teacher opening that goes unfilled is 10-20 other workers without care. When business starts looking at this as an issue rather than a parent responsibility things may change- the childcare cliff problem which leads to problems with low income workers who leave jobs after they get raises got fixed this year because of business input. The child care field has been talking about it for over 10 years but politicians never listened - businesses spoke out and Walker is proposing solutions.

By the way in the current job market are any of you going to fire someone who stays home with their child on a school closing day?

Oct 30, 2018 11:23 am
 Posted by  Anonymous

What about for parents who already have FMLA paperwork for a child with disabilities? I have a child with multiple disabilities and he requires trained care-givers. He cannot be left with anyone who cannot recognize various seizure types, administer rescue medications, provide basic life support or manage the other physical or behavioral aspects of his medical condition. FMLA is there so parents can provide active assistance and supervision for family members who are unable to complete ADL's/IADL's because of a serious health condition. In my thinking, that would include unanticipated school/daycare closures.

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About This Blog

Jessica M. Kramer is a partner at Kramer, Elkins & Watt LLC in Madison and writes about employment law. At KEW she handles employment law matters for businesses and individuals, and represents landlords in all aspects of landlord-tenant law. Jessica received her undergraduate degree from UW–Madison in 2000 and her Juris Doctor from the UW Law School in 2004.

 Ashlie B. Johnson, PHR, is the owner of Brooke Human Resource Solutions, serving the Dane County area. BrookeHR operates as an independent HR contracting resource for small businesses, providing a wide range of support as well as policy language, documentation, and employment agreements that meet today’s complex compliance standards. Ashlie received her B.S. in Human Resource Management from St. Cloud State University in 2002 and has been a certified PHR since 2007.



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