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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 2 of 2)

Let’s say an employer has two employees — Alfred (a dad) and Dominique (a mom) — who both miss work to stay home with their respective children, and the male is penalized because the employer saw his choice to stay home as discretionary, whereas the female is not penalized because the employer saw the female’s decision as necessary, then the employer has just treated Alfred more harshly than a similarly-situated female employee, which most likely constitutes sex (gender) discrimination in violation of the Wisconsin Fair Employment Act, Title VII of the Civil Rights Act, and likely other laws. Even in a situation where there is no Alfred, if all employees who take time off for children happen to be female, and time taken off by their male counterparts for other reasons is not equally frowned upon, there may be an issue of sex discrimination.

“Family status” or “family responsibilities” discrimination is a developing area of the law. The theory goes that if one employee is treated a certain way because he or she has children when another without children is treated differently, then one employee’s family status is the basis for the treatment and that should be a protected status. This particular type of protection is not explicitly recognized under state or federal law (some other states, as well as local laws, do address it, and federal employees enjoy parental status protection). However, if marital status or sexual orientation may be factors in a person’s family status and whether they stay home with their children, those are protected classes that have gotten employers into hot water in the past.

In general, an employer that is empathetic of its employees’ individual situations has been seen to be a good employer. However, the best employers are those who create and implement employment practices and policies in a way that does not take such things as gender, sexual orientation, or marital status into account.

So what does this all mean? If you write up all of your employees who took off to stay home with a child yesterday due to the snow day you may be a meanie, but you have likely not violated any employment laws.

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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.

Mar 4, 2019 08:25 pm
 Posted by  Anonymous

This is totally unfair!! Is my first time living in he north side and the amounts of stressed I go due school delays are way high. Mostly because I do pay for daycare, but their daycare is at the school so when they closed daycare closed. I think there should be a law that cant penalize parents if they have to stay home with the kids due the weather. This is why kids stay home by themselves hours unsupervised. I don't think this is right.

Jul 15, 2019 11:44 pm
 Posted by  Anonymous

I have to agree with poster March 4, 2019 0825. I recently asked our biggest manager about 24/7 childcare because the hours are demanding and workers begin and end work at all hours. I was told that they had looked into it but due to budget constraints they could not afford it. When I talked to older women in their 50-60's they tell me that they took off four months or a year and their husbands provided. Well, when I started college in 2004 I remember hearing on the news that the majority of all new college enrollees were women that year. So, that means that we as women were able to dream that they could achieve and be just as successful as men. But our work culture has not changed, the attitudes are that men provide and they don't need to be at home with their children. And women, if you want to keep your careers that you spent thousands of dollars studying for in college, forget about having children because there is no flexible childcare and there is also no paid maternity leave.

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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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