During the Coronavirus/COVID-19 pandemic, California state and local governments have issued broad shelter in place orders requiring residents to remain in their homes, except for essential business.  As California moves into the third stage of Governor Gavin Newsom’s four-stage reopening plan and counties ease Coronavirus/COVID-19 restrictions, many employees that have been without work for months are expected to return to work.

The unprecedented circumstances surrounding the Coronavirus/COVID-19 pandemic and ensuing shelter in place create uncertainty amid the resumption of economic activity.  Millions of Californians filed for unemployment benefits to offset the abrupt loss of work.  As the state gradually reopens, many of the unemployed will resume work.

Even as the state approaches the third stage of reopening – permitting high-risk businesses such as movie theaters and gyms to reopen – not all businesses that can do so are reopening, including many daycares and babysitting businesses.  Further, summer camps and summer school programs are dramatically shifting to virtual service offerings amid continued fears related to the Coronavirus/COVID-19 pandemic.  Against this backdrop, thousands of California parents will be recalled to work this summer despite lacking viable childcare options.  What happens to unemployment benefit eligibility where a parent is unable to return to work due to Coronavirus/COVID-19 childcare commitments?

Full-Time Childcare Duties Can Render Unemployment Recipients Ineligible for Unemployment

To qualify for unemployment, a claimant must be able and available for work.  California Unemployment Insurance Code § 1253.  A claimant unable to work due to full time childcare duties emanating from their failure to make childcare arrangements is ineligible under the California Unemployment Insurance Code section 1253(c).  Often, childcare problems are seldom this simple, and EDD must decide them on a case-by-case basis.

Limited Childcare Responsibilities Can Support A Finding of Good Cause for Unemployment

According to the EDD, a claimant can remain eligible for Unemployment despite childcare duties, when the childcare duties limit availability for work.  Here, the claimant may qualify for unemployment when the employer refuses to employ them for having scheduling and shift restrictions due to childcare responsibilities.    Here, the claimant remains able and available for work circumscribed by necessary and reasonable childcare restrictions.

To qualify for unemployment here, the claimant must meet the following factors:

  1. The claimant’s childcare restrictions are compelling; and,
  2. A substantial field of employment remains available to the claimant.

Compelling Childcare Restrictions

As stated above, the claimants childcare responsibilities must be of a compelling nature.  In determining the nature of the childcare duties, EDD considers the age of the children requiring care.  Younger children are more compelling.  EDD also looks to the claimants attempts to obtain childcare, including with day care services, neighbors, friends, and family. The claimant is expected to explore all practical childcare options before asserting childcare restrictions on their availability for work.  During the Coronavirus/COVID-19 pandemic, many options may not be viable or even safe. Many day care services remain closed or virtual-only, and many friends and relatives may refuse to provide care out of fear of contracting the Coronavirus/COVID-19 virus.  Still, the claimant should explore all plausible childcare options.

EDD considers the duration the claimant expects to be without childcare.  A temporary loss of childcare is not compelling.  Presently, California governments are softening their shelter in place orders.  However, it is unclear when the orders will be lifted entirely.

The claimant should also explorer practical alternatives for working around the childcare restrictions with the employer, such as transferring to another shift or location.  The employer must work to facilitate alternative work arrangements that accommodate the employee’s compelling childcare restrictions.

EDD does not generally consider childcare costs in determining whether childcare responsibilities are compelling.

The claimant must show they were left with no practical alternative but to refuse the return to work. Where no practical alternative exists, the need to care for a child is compelling.

Substantial Field of Employment Remains Open

To qualify for unemployment benefits for loss of work due to childcare responsibilities, the claimant must show that a substantial field of employment remains open.  A substantial field of employment exists where the field of potential employers is not narrowed by the childcare restrictions that the claimant has no reasonable possibility of securing or accepting employment.  This finding requires a claimant with childcare responsibilities to keep their child-care work restrictions reasonable so that a chance for employment is possible.  Where the claimant asserts a total inability to work due to childcare, the EDD is likely to find that a substantial field of employment is not open for the claimant, and the claimant will be disqualified from unemployment benefits.

California Supreme Court Reverses EDD

In Sanchez v. CUIAB, 20 Cal. 3d 55 (1977), the claimant was a former waiter and factory work who was not available for work on weekends due to childcare duties.  EDD disqualified her for unemployment, finding she was not available for work.  In reversing the decision, the California Supreme Court wrote, “[w]e conclude that a claimant who is parent or guardian of a minor has ‘good cause’ for refusing employment which conflicts with parental activities reasonably necessary for the care or education of the minor if there exist no reasonable alternative means of discharging those responsibilities.” Sanchez v. CUIAB, 20 Cal. 3d 55 (1977).

Sanchez illustrates that a claimant has a compelling need for childcare when all attempts at securing childcare have been unsuccessful. Additionally, the claimant’s restrictions on childcare must be reasonably limited so their employment options remain open.

Significant Risk of Disqualification for Total Inability to Work Due to Childcare Responsibilities

During the Coronavirus/COVID-19 pandemic, these rules and guidelines presumably continue to apply. A claimant who is unable to work at all due to childcare responsibilities risks a finding of disqualification from unemployment should they assert total inability to return to work.  The employee may qualify for worker supportive services, designed to help with childcare costs.