How working mothers have been left behind during the COVID-19 pandemic
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www.plaintiffmagazine.com
MAY 2021
How working mothers have been left
behind during the COVID-19 pandemic
A look at the state and federal laws, including those
passed in response to COVID-19, that left behind many
workers ensnared by the pandemic
By Katie Bain, Laura Mazza, and Katie Debski
California is widely known as one of the most progressive
states when it comes to workers’ rights. The past year brought
major changes and expanded existing protections, especially in
the area of protected family leaves. For example, the California
Family Rights Act (CFRA) – the state analog to the federal Family
Medical Leave Act (FMLA) – was significantly broadened to cover
smaller employers and expand the definition of who qualifies as
a family member to trigger the law’s protection. But while new
laws such as the federal Families First Coronavirus Relief Act
(FFCRA) attempted to create protections for employees who
simultaneously feared for their safety and livelihood, they did
not go far enough to protect working parents.
The myriad of regulations passed at the federal, state,
county, and local levels, though well-intentioned, were piecemeal,
difficult to navigate and interpret, and did not do enough to help
working parents and caregivers faced with school and daycare
closures, and thus children who had no place to go except home.
The burden of caregiving fell and continues to fall disproportion-
ately on women whose careers have been negatively impacted
during the past year and will take a long time to recover, if ever. a year (1,250 hours or more in the past 12 months). Moreover,
These failures have reversed progress for working women that prior to 2021, the law only applied to mid- or large-sized
took years, if not decades, to come to fruition, signifying another employers (with 50+ employees working within 75 miles of
loss from this pandemic in addition to so many lives. the worksite).
Thankfully, the law has now been expanded to cover a wider
Laws that existed pre-pandemic and provide protections range of employers. Under the most recent expansion effective
for working parents January 1, 2021, CFRA was modified by SB 1383, and now
California Family Rights Act (CFRA) applies to smaller employers with five or more employees and
The primary California law that provides job-protected time eliminates the requirement that employees work within 75 miles
off for parents is the California Family Rights Act, or CFRA, of the worksite. With respect to workers who need to take time off
which is the California equivalent of the federal Family Medical to care for a family member, the definition of protected family
Leave Act (FMLA). CFRA, codified at California Government members previously included a minor child (but not adult
Code sections 12945 et seq., provides employees with up to 12 dependent children), a spouse, or a parent. This definition has
weeks of job-protected leave for the birth of a child, the employ- now been expanded to include grandparents, grandchildren,
ee’s own serious medical condition, or the serious medical siblings, domestic partners and in-laws. The definition of “child”
condition of a close family member. It also provides a right of was also amended to include all adult children even if not
reinstatement to the same or similar job position following the dependent, as well as the children of a domestic partner. Another
leave. However, CFRA has some limitations in that it only significant change to CFRA this year was eliminating the
protects employees who have worked for an employer for at least previous caveat that where two parents worked for the same
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MAY 2021
employer, the employer was not required for their children who are merely sick and article, we will address the primary evolving
to provide more than 12 weeks of leave not disabled. protections for working parents that
total for the couple (in connection with Kin Care Law occurred at the federal and state levels.
the birth, adoption, or foster care California’s Kin Care law is found in One of the earliest and most expan-
placement of a child). section 233 of the Labor Code. The Kin sive forms of relief was the federal relief
However, as addressed above, CFRA Care law was enacted prior to California’s package titled the Families First Corona-
only applies to medical conditions and mandatory sick leave law and requires virus Response Act (FFCRA) which went
bonding with a new baby, so working that employers who provide paid sick into effect on April 1, 2020, and covered
parents who need time off to simply watch leave permit employees to use up to half workers through December 31, 2020. The
their healthy children whose schools and of their accrued and available sick leave FFCRA essentially provided two weeks of
daycares are closed are not protected to care for a family member needing care paid sick leave and 12 weeks of expanded
under CFRA. If the parent or child due to any of the reasons listed in Labor FMLA (job-protected leave) for certain
contracts COVID-19, CFRA kicks in to Code section 246.5 (which include, workers who met particular qualifying
provide job protection, but that has done among other things, diagnosis, care, or criteria, including having children at
little to help the huge number of parents treatment of an existing health condition home as a result of school closures or the
whose children have had no safe place to and preventative care). The Kin Care law unavailability of childcare. Paid sick leave
go during the day while the parent is at is helpful in allowing parents to take time was granted to employees who were
work. off when their children are in need of quarantined per government order or at
For parents still needing to go medical care, but because it only requires the advice of healthcare providers; to
physically into their offices, this has been employers to provide half of the employ- those experiencing COVID-19 symptoms
an impossible situation, and even for ee’s sick leave for this purpose, it doesn’t and seeking diagnosis; and to those who
parents who could work from home, they provide much time off in most cases, and had a bona fide need to care for someone
have been left in the untenable position it does nothing to help parents who have else in quarantine or for a child whose
of trying to work a full-time job while needed to stay home with their healthy school/childcare provider was closed or
simultaneously caring for their children, children. unavailable due to COVID-19.
and in many cases, being a full-time Family School Partnership Act The Act provided further protections
teacher for their child’s distance learning. California’s Family School Partner- for those employees who worked for a
Fair Employment and Housing Act (FEHA) ship Act, codified at Labor Code covered employer for at least 30 days
California’s anti-discrimination law, sections 230.7 and 230.8, was enacted – they were also entitled to an additional
the Fair Employment and Housing Act long before the pandemic, in 1995, 10 weeks of paid expanded family and
(FEHA), grants some limited protection followed by an expansion in 2016. medical leave at two-thirds the employ-
for working parents caring for a disabled This law allows employees up to 40 ees’ regular pay when the employee was
child or other family member (e.g., in the hours of job-protected leave per year unable to work due to the need to care for
form of an accommodations request for a and no more than eight hours per a child whose school/childcare provider
leave or remote working arrangement). month to deal with a childcare or was closed or unavailable.
However, it does not provide for any set school emergency (including a However, while the passage of the
duration of job-protected leave like COVID-19 closure). Eligible employers FFCRA was certainly a relief for working
FMLA and CFRA. FEHA, codified at are those with 25 or more employees parents, it did not go nearly far enough
Government Code sections 12940 et seq., at the same location. While this to provide the job protections needed and
makes it illegal for employers with at least provides some temporary job protec- also included some major loopholes. For
five employees to discriminate against tion for working parents, it fails to example, the FFCRA was limited to
employees in certain protected classes, help when schools and daycare centers employers with 500 or fewer employees,
including disability. FEHA also requires are closed for months on end. and small businesses with fewer than 50
employers to accommodate employees employees could also qualify for exemp-
with disabilities, and a finite leave of Additional legal protections that tion from the requirements of protected
absence can be a reasonable accommoda- arose in the era of COVID-19 childcare leave if they could show it would
tion if it does not create an undue The pandemic brought a slew of new jeopardize their business in the future.
hardship for the employer. However, this laws, executive orders, and relief packages What about the tens of thousands who
law does nothing to protect parents who from all different levels of government, worked for large corporations?
have needed time off during COVID-19 including those targeting specific indus- California attempted to address this
to care for their healthy children, nor has tries, such as food services, for example. exclusion with California’s COVID-19
it allowed parents to take time off to care While we cannot address them all in this Supplemental Paid Sick Leave law. In
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MAY 2021
April 2020, Governor Gavin Newsom women already made up a smaller prospects. However, working mothers
signed Executive Order N-51-20 which percentage of the workforce in California were failed in more than just the fact that
applied to large employers with more (as of 2016, 69.75% of women in Califor- their future earnings could be negatively
than 500 employees and provided their nia were in the workforce compared with impacted. What became clear was that
employees with a period of paid and 81.85% of men2), with the onset of the many of these working moms lacked any
protected leave for various qualifying pandemic this divergence became more protections or guarantees that they would
reasons (including childcare needs) that pronounced, particularly for women have a job at all when the pandemic
echoed the FFCRA. However, this only of color. restrictions ultimately lifted. As explained
covered employees in the food services According to research by the Public above, the FFCRA provided some job
industry. Policy Institute of California (using protections for those who had to take
A number of local entities such as information obtained from the Bureau leave to care for children in the wake of
counties and municipalities also tried to of Labor Statistics), the percentage of schools and daycares shutting down
expand the FFCRA’s protections by working women in California declined across the state. However, there were
providing coverage for employees who steadily in March, April, and May of shockingly large gaps in coverage that
worked for corporations larger than 500 2020, especially when compared with disproportionately affected working
employees, and in some cases, expanding men.3 The California Budget and Policy moms.
the qualifying conditions for coverage, Center also reported that “during the first For example, one mother contacted
but the regulations were piecemeal and three months of the downturn, employ- our firm who had a long and successful
lacking in enforcement power. In Septem- ment for Black and Latinx women fell by career working for a large corporation.
ber 2020, the California legislature went over 20% – more than three times the Her children’s school had to close due to
further and modified the Supplemental decline in employment for white men.”4 COVID-19, so she explained to her super-
Paid Sick Leave Law, codified at Labor Additionally, women who had immigrated visor that she needed leave so she could
Code 248, to add stronger enforcement to California, had a 20% reduction in the watch them and supervise their distance
mechanisms and expand the law to workforce between February and May learning. The only other family member
include private employees outside 2020, compared to a 14% reduction for available to watch the children had
the food sector industry with more immigrant men.5 become seriously ill. Shockingly, her
than 500 employees nationwide and all Sadly, none of this comes as a great supervisor refused and asked for her
employers of all sizes (both public and surprise. Not only have women tradition- resignation, citing the needs of the
private) who employed first responders ally taken on more childcare responsibili- business. The woman was understandably
and health-care workers who were not ties than their male counterparts, but distraught and thought this could not
eligible under FFCRA. because of the persistent gender pay gap possibly be legal, but she was wrong.
Nevertheless, until the fall of 2020, (as of 2019 full-time working women in It was absolutely legal, as the company
there were almost no protections at all for California earned about 89% of what their she worked for had over 500 employees,
those employed by employers with 500 or male counterparts did6), if one parent so she was not covered by the FFCRA.
more employees. Even once additional had to stay home to watch the kids during Let down by the federal law, we
protections were put in place, many a pandemic, the mother was the “logical” assumed that California (which overall
schools and childcare facilities remained choice, both for stereotypical gender- provides more protections for workers than
closed from March 2020 until as recently conforming reasons and due to financial in other states) must provide some addi-
as the spring of 2021 (and even then, concerns. This meant that many women tional protection for this woman, but after
often with reduced hours), meaning who had already faced and overcome scouring the newest COVID-19 legislation
workers have needed far more than the significant hardships related to taking and amendments, we came to the sad
protected time off provided. maternity leave from work found them- conclusion that there was no protection for
selves hit again with the need to take her in her industry (which was not in the
Too little, too late, with working significant time off from work. food sector – the only area protected at the
mothers behind Studies have already shown that time) or the many other women in similar
As of December 2020, the number of taking time off to care for children has a positions. While some counties and
women who had left the labor force in the negative impact on women’s long-term municipalities did end up creating addi-
United States since the start of the earnings7 and there is no reason to tional protections for those working at
pandemic had already reached 2.3 believe that having to do this related to a companies with over 500 employees, these
million, leaving the rate of women’s pandemic, as opposed to pregnancy or were piecemeal and varied from county to
participation in the work force at the maternity leave, would have any less of an county and in some cases even depended
lowest level seen since 1988.1 While impact on a working mother’s career on whether the specific area where the
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MAY 2021
company was located was incorporated into At the beginning, it was impossible to
the county or not. predict how far COVID-19 would spread,
What has been desperately needed, how long it would go on, and how much it
and what our government has failed to would impact our lives. While some laws
deliver, is a comprehensive law prohibit- have been passed or expanded to help
ing these kinds of terminations that working parents, the statistics speak for
disproportionately affect working themselves as to the negative and lasting
mothers. As referenced above, in Septem- career impact in our nation, particularly
ber 2020, California did finally enact a for women and women of color. Mazza, Bain, Debski (L to R)
broader supplemental paid sick leave law In our firm, we also hear stories
(AB 1867 codified and expanded Execu- directly from the potential clients who anything else while taking care of a
tive Order N-51-20, with new Labor Code contact us every day – those who have child.”10 As hope forms on the horizon
Section 248 and 248.1, also amending been chastised by their supervisors for not that this pandemic may be winding down,
enforcement procedures at 248.5)8, but it being able to perform more work while our support for the mothers who took
only allowed 80 hours of paid leave for simultaneously watching their children, care of this country while it was ailing
full-time employees working outside the and those who have lost their jobs or been needs to be ramping up. They deserve at
home (and those not working full time forced to resign due to childcare and least that much.
received even less).9 Thus, if a parent homeschooling responsibilities, because
has had to spend more than two weeks they have no other option. It is heart- Katie Bain, Laura Mazza, and Katie
watching their children due to school breaking to receive these calls and know Debski are Plaintiff ’s side employment attorneys
closures (which is every parent since the lasting damage it will have on these at the firm of Bain Mazza & Debski LLP,
schools have been closed for many families. with offices in San Mateo and Las Vegas. Their
months), it has left them without any job We hope that as our society emerges firm handles a broad range of employment law
protection or right to return to their prior out of the pandemic, we will be cognizant matters, including employment discrimination,
position. Receiving only two weeks of pay, of the unequal negative effects this harassment, retaliation, wrongful termination,
followed by unpaid and unprotected pandemic has had on working mothers and wage and hour violations. Their practice
leave, has been insufficient for the (particularly women of color) and their also includes personal injury, representing
millions of working parents who found careers, and do more to support and plaintiffs in automobile and slip and fall
themselves in this situation, the majority build up these workers. Working mothers accidents. All three partners are mothers of
of whom were women. have practically performed miracles young children and firmly believe that
during this pandemic, often working litigation and parenthood do not have to be
Conclusion three jobs simultaneously – mother, mutually exclusive. A collaborative approach,
The pandemic of the past year has teacher, and employee. In the words of in which all attorneys work on every case
been a challenging and dynamic situation actress Julianne Moore, “It’s not difficult together, sets their firm apart. Check them out
for families, workers, and lawmakers alike. to take care of a child. It’s difficult to do on Yelp and at www.bmdlegal.com.
Endnotes:
1
https://nwlc.org/wp-content/uploads/2021/02/January-Jobs-Day-FS.pdf
2
https://milkeninstitute.org/sites/default/files/reports-pdf/Women-in-the-Workforce-How-California-Measures-Up-FINAL.pdf at appendix C6.
3
https://www.ppic.org/blog/gender-gaps-in-the-covid-19-labor-market/
4
https://calbudgetcenter.org/resources/women-poc-take-hits-in-californias-job-loss/
5
Ibid.
6
https://www.bls.gov/regions/west/news-release/womensearnings_california.htm
7
https://www.ppic.org/blog/gender-gaps-in-the-covid-19-labor-market/
8
https://www.constangy.com/california-snapshot/california-expands-supplemental-covid-19-paid-sick
9
See i.e., https://www.dir.ca.gov/dlse/FAQ-for-PSL.html
10
https://www.redbookmag.com/life/interviews/a4649/julianne-moore-family-life/
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