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

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 last Wednesday, 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 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.  But, 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 as well 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. And, school-related leave doesn’t exist. Does that mean, as an employer, I’m safe disciplining Dominique or Alfred 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.

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, 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.  But, 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.

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

Contact Attorney Jessica M. Kramer for more information regarding how to implement and follow non-discriminatory policies at work.