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Childcare and COVID-19: What Is Legal?

Children play at a daycare.
By Kellie Pantekoek, Esq. on April 09, 2020 1:21 PM

If you, like the vast majority of Americans, are currently ordered to stay at home or shelter in place, you might be struggling to understand exactly how to comply. You might be confused about whether you can send your kids to daycare right now, or if your nanny or babysitter can still come over — and if not, whether you are still legally obligated to pay. We will address each of these issues and more below.

Are Daycares and Childcare Centers Open?

In nearly all states, daycares and childcare centers are considered "essential businesses" so they can stay open continue to care for the children of essential workers such as health care workers, public safety and law enforcement workers, and critical transportation workers.

In many states, such as Minnesota, parents with "nonessential" jobs are not specifically prohibited from taking their children to private daycares that are still open; however, states are urging parents with nonessential jobs to keep their children home so that childcare can be reserved for the children of emergency workers, and further the purpose of the stay-home orders.

Other states, including California, Illinois, Kentucky, Maryland, Massachusetts, New Jersey, Ohio, Oregon, Vermont, and Wyoming have specifically closed daycares for the general public but have given providers the option of staying open to children of parents working in emergency care or other essential sectors.

Rhode Island has directed all childcare centers in the state to close and has temporarily suspended all child care licenses. A partnership with care.com was set up to assist families of frontline workers.

For more information, the Hunt Institute, an affiliate of the Duke University Sanford School of Public Policy, is keeping updated details on the changing child care actions in response to COVID-19 in every state.

Can My Nanny or Babysitter Still Come Over?

Few states, if any, expressly prohibit nannies or babysitters from working during a shelter-in-place or stay-at-home order. However, California officials have clarified that only nannies or babysitters of parents working in essential sectors may still go to work.

The policies in other states with stay-at-home orders could be interpreted the same, as these orders generally prohibit leaving the house for anything other than essential needs. However, it's best to look for guidance from officials in your own state for clarification.

Do I Have to Pay for Childcare I Don't Receive?

With so many daycares closing and states telling parents to keep their kids home, many parents are left wondering whether they have to pay for care they didn't receive.

From a legal standpoint, the duty to pay would depend on state or local laws and whether the parents have a contract with the childcare center that addresses extended closures for issues like pandemics.

The attorney general of Maine has addressed this issue and said that when no contract applies, a “pre-existing course of dealing may mean payment would be required during this emergency" if the same would be expected in other emergencies such as snow days.

Along those same lines, the Kentucky attorney general's office said whether parents are required to pay for daycare amid a closure depends on the terms of their agreement and would require “a case-by-case analysis by a private attorney."

If the parents decide to keep the kids home while the daycare remains open, they are likely still responsible for payment, if they are normally expected to pay for days that they miss unless they formally un-enroll their children by following the necessary protocol.

When it comes to nannies and babysitters, the issue of whether you have a legal obligation to keep paying despite not getting childcare depends on the agreement you have in place. If you have agreed to paid sick leave or have guaranteed hours, then you likely need to honor the agreement.

What About the Moral or Ethical Obligations?

Of course, there are moral or ethical obligations, in addition to legal, that parents often consider as well. The coronavirus outbreak has hit childcare providers especially hard, both because they are losing business but also because if they stay open to serve essential workers, they are putting their own lives and families at risk.

Some parents have taken to Facebook to post on the topic, and the many responded that they feel they have a moral responsibility to keep paying their childcare providers for as long as they have the means to do so. Others have said that they don't feel they should have to pay for something they are not getting.

These are issues that tens of thousands of parents across the country are struggling with. Until your state or municipality offers guidance, the best way to handle it is by communicating directly with your childcare provider to try to get on the same page. This is especially true if you hope to continue using the same provider when the COVID-19 crisis is over.

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