UPDATE: Please note that the state has provided a hotline to help essential workers find childcare.
NC local governments are increasingly taking operations remote to encourage social distancing among personnel and the public. By Executive Order, Governor Cooper closed all public schools across the state, at least through March 30, 2020. Local government employers, as most private employers, are quickly finding creative ways to support operations while also providing flexibility for employees. Managers, administrators, and department heads are working with staff and community members to figure out efficient ways to accomplish the most essential tasks, while postponing less critical items and streamlining as many processes as possible.
Some employee functions are essential and cannot be performed remotely. Because of this, several local units are looking to provide child care assistance to ease the burden on essential employees and allow them to continue to perform important job functions. This post lays out some of the options available to local units and highlights legal issues and considerations. Please note that in the interest of getting this information out quickly, I may have missed some of the potential issues or options. Please feel free to share your thoughts/questions/concerns with me and I will update the post accordingly.
The following are options that a county or municipality could explore if it wants to provide childcare assistance to its essential employees.
Financial Assistance to Essential Employees
Local governments have broad authority to provide employee compensation and fringe benefits. See G.S. 160A-162 (municipalities); G.S. 153A-92 (counties). Pursuant to this authority, a local government could provide a salary supplement to employees to help them pay for private child care during the COVID-19 outbreak. The salary supplement would be treated as wages to the employee and subject to federal and state employment taxes. This option puts the least administrative burden on the local government and allows for employees to arrange their own individual or small group childcare so as to minimize exposure to others. Of course, it places a burden on employees to make suitable childcare arrangements during a time that caregivers may not be readily available. However, there may be community groups, day cares, and other local organizations to help essential employees with childcare needs while schools are out.
A county or municpality’s governing board sets the salaries and benefits for all employees of the unit. Unless authority to make salary adjustments has been delegated by the board to the manager or administrator, the board would have to vote to amend the salary schedule to provide the salary supplements. (See Frayda Bluestein’s post on Meetings and Public Hearings Under the Coronavirus State of Emergency for meeting options.)
Allow Facility Use by Children of Essential Children
Another action that a local government could take is to allow the children of essential employees to use its facilities while their parents/guardians work. Local units could allow parents to bring children to work with them and provide the children with some supervised access to recreational facilities and activities that the local government normally provides to the public. For example, a local unit could host a supervised gym drop-in for children of essential employees. Many local governments are limiting public access to their buildings. That may leave spaces open to be used for this purpose. This option could make it easier for essential employees to get to work, although it likely is only an effective option for limited time periods each day.
The local government would have to incur the cost and burden of keeping the facilities maintained and, importantly, cleaned/sanitized. The local unit also should consider implementing use guidelines to best comply with the state’s social distancing recommendations. A local government would have to consider any potential liability issues. Perhaps, it could treat this as a facility rental and have employees sign waivers related to the use of the facility. If your local government does not normally rent its facilities, you may want to seek sample policies/waivers from other units over the listservs or through NC Finance Connect. I also recommend contacting your insurance provider to check on potential coverage issues.
Provide Recreation Programs for Children of Essential Employees
A third option for a local government that regularly hosts pre-K and/or school-aged recreational day camps (during school track-outs or summer break) is for the local unit to offer free, or reduced cost, day camps for the children of essential staff members. Local governments have broad authority to provide recreation programs. See G.S. 160A-353. And the statutes define recreation to include activities that are “diversionary in character and aid in promoting entertainment, pleasure, relaxation, instruction, and other physical, mental, and cultural development and leisure time experiences.” G.S. 160A-352. Limiting these programs to essential employees of the local government (as defined by the local unit) both serves a public purpose and is authorized by the compensation statutes cited above. The local government would employ the recreation leaders and design program groups as modified day camps to comply with social distancing recommendations to the extent possible. (See NC DHHS’s recommendations related to groups less than 50 here.) Again, many local governments are canceling traditional recreational programs, which may free up space and staff to run the day camps. Depending on the number of children involved, however, a local government may need to hire additional staff in order to keep ratios low.
Daycare facilities and programs are regulated by the NC Department of Health and Human Service’s Division of Child Development and Early Education and subject to licensing requirements. There is an exception to these requirements for recreation programs that last no longer than four consecutive months. See G.S. 110-86. Thus, if a local government offers recreational day camps for no longer than four consecutive months, the programs would not be subject to these state regulations. Note, however, that local governments that do not currently run day camps or similar recreation programs may not be equipped to safely add these programs now, even if just for the children of essential employees. And even for local governments that do regularly provide recreational camps for kids, an essential employee kids camp may only be a ready option for children over a certain age. Normal recreational day camps are usually only offered for children that are at least 4-5 years old, although there may be some programs for younger kids. Local governments are encouraged to treat this as a last-resort option because of the implementation difficulties and the potential risks of COVID-19 exposure.
It is not clear whether this type of program would be deemed an employee fringe benefit subject to federal and state employment taxes. Employers are allowed to provide some tax-free child care support to employees. There are also issues related to liability. Because these are recreation programs, a local government may be able to modify its usual recreation program waivers to apply to these day camps. If applicable, check with your insurance provider about any potential coverage issues. I also strongly encourage each local government to consult with it’s attorney to work out the specific details before implementing any of these programs.
As with the facility use option above, the local government would have to maintain and clean/sanitize the spaces used for the day camps. The day camps should be designed to limit the potential spread of COVID-19 to the extent possible. That may require extra coordination efforts and additional cleaning/sanitizing throughout the day. A local government should consider following CDC recommendations and state guidelines.
