Legal Update

Mar 22, 2020

Emergency Childcare: A Guide For Health Care Providers

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 As the effects of coronavirus unquestionably impact every aspect of people’s lives, health care employees and other critical first responders are faced with the challenge of taking care of their children as they continue reporting to work. As schools and child care centers across the country are shuttered, how do health care providers make sure their children are safe and secure while their parents carry out essential lifesaving tasks?

As an initial matter, health care institutions are no doubt considering whether they have the capability (or inclination) to establish temporary, on-site child care or whether they should look to external community partners on behalf of their employees. These two distinct tracks each carry their own sets of challenges and decisions and, to make matters more complicated, will likely vary by jurisdiction.

Establishing On-Site Emergency Care For Employees

When considering whether on-site care is a palatable option, there are several considerations to keep in mind:

  • Obtaining a license. Some state governors have signed Executive Orders which permit provisional licensing for the establishment of emergency/disaster relief child care centers. It is best to consult the state Department of Children and Families or other family agency website for information on how to apply for an emergency license.
  • Staffing and Screening. Not many health care providers have a team of qualified daycare providers ready to staff a new child care facility. Some states and family agencies are partnering with area teenagers to assist in exchange for receiving school service credits. There are also many existing daycare workers who have been laid off or furloughed as a result of their child care center closing, so there is likely a capable pool of applicants who are already looking for work in the local community.
  • Building and Grounds. Is there existing space that is appropriate for use as a child care center? For hospitals, this would include making a health and safety determination as to whether children can be adequately distanced from potentially sick patients. In some states, the current licensing requirements related to the physical location have been relaxed or suspended, e.g. requirements related to mandatory outdoor space, minimum square footage per child, and requirements that a facility be located on the first floor of a building. Easing these types of restrictions should help in obtaining a license quicker.
  • Insurance. Examining existing commercial liability insurance policies is warranted in order to ensure adequate coverage for any potential claims.

While there are certainly other issues to consider (e.g. where to get equipment and supplies), health care providers considering this option should seek legal guidance in setting up such a facility. Health care providers might also consider pooling resources among themselves and/or with other essential workers.  

Utilizing Existing Community Resources

In states that have not yet established a system for obtaining waivers or a protocol for setting up emergency centers, employers can look to:

  • Local YMCAs and Boys & Girls Clubs
  • Public and private school sites
  • Facebook groups and social media pages offering local support
  • For employers who have already partnered with a back-up care service provider, these options should be explored for critical staff.

In addition to the practical concerns for health care providers seeking to assist their employees with child care, there is also the question of cost. In Massachusetts, the government has indicated that it will be subsidizing the cost of child care for those enrolled in an emergency child care program. In addition, on March 11th, 39 child care groups signed a letter to Congress asking for “significant and flexible emergency funding” to help child care centers “weather this growing public health and economic crisis, and preserve the nation’s supply of family child care and community-based child care programs.” Given the financial uncertainty associated with either on-site child care or use of emergency child care, employers will need to carefully evaluate whether their jurisdiction (or the federal government) is likely to subsidize the cost and, if not, whether they want to step in to help. That decision will turn on a variety of business and organizational concerns.

Key Takeaways

  • State requirements on establishing a temporary, on-site child care center will vary. We expect to follow this piece with a sampling of state-specific guidance. Consult the local state agency and seek guidance before proceeding.
  • If your state has established emergency child care facilities available to health care workers and first responders, make sure you are communicating this information to your employees as soon as possible.
  • New Orders and regulations are coming down daily and this information will be updated in the Seyfarth COVID-19 Resource Center as new information becomes available.