• Akiko Thayer

My maternity leave is ending and my childcare fell through due to COVID! Can I take more leave?

I'm getting a lot of questions from moms who are coming to the end of their maternity leave, only to find out their childcare option has fallen through due to COVID. No doubt this is a common situation right now, but what is a mom supposed to do? Will the mom be eligible for more time off to figure out a back-up childcare solution? The short answer is "maybe."


If you've found yourself in this predicament, you may be eligible for additional leave under the Family First Coronavirus Response Act (FFCRA), a new, but temporary, law that became effective on April 1, 2020 and scheduled to sunset on December 31, 2020. But, like most leave laws, there are caveats. I've organized this post into different scenarios, so read on to see what options you have available to you for your situation.


You should read my post on the Family First Coronavirus Response Act to get the full scoop, but here's a quick recap to bring you up to speed.


There are multiple sections of FFCRA, but there are two key provisions that pertain to employee leave rights and wage replacement: 1) The Emergency Family and Medical Leave Expansion Act; and 2) The Emergency Paid Sick Leave Act.


The Emergency Family and Medical Leave (FMLA) Expansion Act

  • 12 workweeks of job-protected leave when an employee is unable to work (or telework) because their child’s school has closed, or the child care provider is unavailable due to COVID.

  • Applies to any employer with fewer than 500 employees, as well as public agencies of any size. There are some exclusions, including some health care providers and employers with fewer than 50 employees.

  • Applies to any employee who works for a “covered” employer (as defined above) and has been employed with that employer for at least 30 calendar days.

  • First 10 days are unpaid, but thereafter, paid leave in the amount of two-thirds of the employee’s regular rate of pay for the number of hours she would have otherwise worked, up to $200 per workday and $10,000 in total.


The Emergency Paid Sick Leave Act

  • Provides up to 2 weeks of paid sick leave to an employee who needs to miss work due to caring for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-related reasons. (Note, there are other reasons to request Emergency Paid Sick Leave, including having COVID, needing to quarantine or taking care of a family member who has COVID, etc.)

  • Applies to any employer with fewer than 500 employees, as well as public agencies of any size. The same exceptions and exclusions applied under the Emergency FMLA Expansion Act are applied here too (see above).

  • Applies to any employee who works for a “covered” employer (as defined above) regardless of how long the employee has been employed by the employer.

  • Paid two-thirds of the employee’s regular rate of pay when emergency paid sick leave is used for school/childcare closure, up to $200 per day and $2,000 in total.


Okay, let's begin with the scenarios! These scenarios really come down to whether you were eligible for "traditional" FMLA when you took your maternity leave; and therefore, your employer applied "traditional" FMLA during your leave. In case you don't know if your leave was covered under FMLA, ask yourself these questions. If you've answered "yes" to ALL of these requirements, you were eligible for FMLA and your employer likely applied FMLA to your maternity leave:

  • Work for an employer with 50+ employees within a 75 mile radius.

  • Have worked at least 1,250 hours of service within the past year.

  • Have worked at your employer for at least one year.


Scenario 1: You were eligible for FMLA, and part of your maternity leave was covered under FMLA.

Unfortunately, you likely won't be eligible for the 12 workweeks of leave under the Emergency FMLA Expansion Act, but you will be eligible to utilize the Emergency Paid Sick Leave Act.


The reason why you won't be eligible for 12 workweeks of the Emergency FMLA Expansion Act is because when you went out on maternity leave, your time under Pregnancy Disability Leave (PDL) ran currently with "traditional" FMLA. And as a result, you've likely exhausted all your available FMLA time for the year. It's important to note that the Emergency FMLA Expansion Act doesn't give you an extra set of 12 weeks of leave. It just merely expands/gives one more reason to take leave under FMLA (i.e when you need leave to care for a child whose daycare/school has shut down).


As mentioned, you will be eligible to utilize up to 2 weeks of sick time under the Emergency Paid Sick Leave Act, regardless of exhausting your FMLA entitlement. Paid sick leave is not a form of FMLA leave and therefore does not count towards the 12 workweeks of FMLA.


I know 2 weeks isn't nearly enough time to figure out back-up childcare coverage, but hopefully it's something to tide you over.


Scenario 2: You were NOT eligible for FMLA, and no part of your maternity leave was covered under FMLA.

In this scenario, you will be eligible to take 12 workweeks of leave under the Emergency FMLA Expansion Act, as well as utilize the Emergency Paid Sick Leave Act.


As noted in the recap above, the first 10 days (i.e. 2 business weeks) are unpaid but thereafter is paid at two-thirds of your regular rate of pay. You can elect to use the 2 weeks of sick time under the Emergency Paid Sick Leave Act to pay yourself during this 10-day unpaid "waiting period." But, if you really want to maximize your time, you can take those first 10 days of the 12 weeks of Emergency FMLA Expansion Act unpaid, and then utilize 2 weeks of sick time under the Emergency Paid Sick Leave Act -- giving you a total of 14 weeks of time off to find yourself a childcare solution.


Of note, moms in this scenario would be employees of smaller employers with less than 50 employees. As a result, the disability portion of your leave was covered only under California's Pregnancy Disability Leave, while the bonding portion, if eligible, was covered under California's New Parent Leave Act.


Scenario 3: You were eligible for FMLA and part of your maternity leave was covered under FMLA, but your employer has over 500 employees.

In this scenario, you would NOT be eligible to take 12 workweeks of leave under the Emergency FMLA Expansion Act, nor the Emergency Paid Sick Leave Act since both of these Acts only apply to employers with fewer than 500 employees.


It's a huge bummer that they are excluding large employers. I think the thought process here was that large corporations would have the money to provide their employees with emergency leave and/or time off should their employees need it during the pandemic.


So, take them to task! If you're in this scenario, fight for extra leave to figure out your childcare solution. With over 500 employees, they should be able to figure out some sort of back-up support to not jeopardize work productivity while you take critical time off to find adequate alternate childcare. Also, some of these larger corporations have partnerships with in-home childcare companies, so definitely utilize and access those benefits if you have them!


Regardless of the scenario you find yourself in talk to your employer as a first step. Everyone is feeling the effects of COVID (well, I'm sure some more than others) and to some degree your boss, your boss's boss, your boss's boss's boss has felt those effects too. I'm hoping that because of the universal effects of COVID, your employer will STEP UP and provide adequate leave for you and their employees.




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DISCLAIMER: The representatives of Maternity Leave 411, LLC (“Maternity Leave 411”), including Akiko Thayer, are NOT ATTORNEYS OR HEALTHCARE PROFESSIONALS. CONSULT AN ATTORNEY FOR ALL OF YOUR LEGAL NEEDS. CONSULT A HEALTHCARE PROFESSIONAL FOR ALL MEDICAL NEEDS.  THE INFORMATION AVAILABLE FROM MATERNITY LEAVE 411, AND/OR ITS OWNERS OR REPRESENTATIVES IS NOT LEGAL ADVICE, OR MEDICAL ADVICE, NOR IS IT INTENDED TO BE CONSTRUED AS LEGAL OR MEDICAL ADVICE.  The information provided by Maternity Leave 411 is designed to guide clients through the generalities of maternity and paternity procedures. The application of law varies with an individual’s specific circumstances.  Please consult an attorney for confirmation that any information or interpretation of law is accurate, current, and applicable to your situation. Maternity Leave 411 makes no claims, promises, or guarantee about the accuracy, completeness, or adequacy of the information contained in or linked to this website,  or otherwise conveyed in connection with this website.