Part II: Emergency Childcare: State-Specific Measures

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As follow-up to our overview “Emergency Childcare: A Guide for Health Care Providers,” below is a deeper dive on some state-specific considerations.  There are some impactful measures that some states have already taken which might serve as a guide to health care employers who are considering how to assist their employees in finding emergency child care.

• California. On March 19, Governor Newsom issued Executive Order N-33-20 directing all residents, except “Essential Critical Infrastructure Workers,” to stay home. Workers supporting public and private childcare establishments are considered Essential Critical Infrastructure Workers.  The state agency that licenses child care centers is leaving the decision up to providers as to whether they want to close. Existing facilities will, however, receive the benefit of various waivers related to capacity and operation. California’s Department of Social Services also ordered an emergency waiver to existing state rules that allows employers to open emergency child care services on their premises. In addition, the California Department of Industrial Relations, Division of Occupational Safety & Health issued guidelines for COVID-19 infection prevention in childcare programs, available here:  https://www.dir.ca.gov/dosh/Coronavirus/COVID-19-Infection-Prevention-in-Childcare-Programs-Guidance.pdf.  Notably, however, Los Angeles County has tighter restrictions on childcare facilities.  On March 19, Los Angeles County issued the Safer At Home Order For Control Of COVID-19 Order, which requires all non-essential businesses to close and restricts gatherings, but allows childcare facilities that enable employees in the Order to work as permitted to stay open with caveats. Childcare centers are required to keep children in groups of 12 or fewer and not mingle with other groups of children.
• Georgia. On March 18, 2020, Governor Kemp joined forces with the Georgia Department of Early Care and Learning (DECAL) to announce that YMCA of Metro Atlanta is transforming several of its facilities into child care centers dedicated to serving the families of medical workers at 9 metro Atlanta hospitals. The hospitals include Children’s Healthcare of Atlanta, Eastside Medical Center, Emory, Georgia Highlands, Intown Pediatric, Northside, Piedmont, WellStar, and Yerkes-Emory.  Additional facilities are expected to be announced on March 27, 2020. In the evening of March 23, 2020, Atlanta Mayor Bottoms issued Executive Order Number 2020 closing down non-essential businesses, but specifically noted in Section 6(f)(20) that Child Care facilities are considered essential businesses and are therefore exempt from the Executive Order.  
• Illinois. Governor JB Pritzker issued an Executive Order that closes all businesses in the state effective on Saturday, March 21, 2020, except those that are deemed Essential Businesses and Organizations. An Essential Business includes a day care center that is granted an emergency license pursuant to Title 89, Section 407.400 of the Illinois Administrative Code, governing Emergency Day Care Programs for children of employees exempted to work by the Executive Order. The Executive Order also suspends the licensing requirements for day care homes pursuant to Section 4 of the Child Care Act, 225 ILCS 10/4 for family homes that receive up to six children for the duration of the Gubernatorial Disaster Proclamation.
• Massachusetts. Governor Charlie Baker issued an Executive Order that closes all early education centers and family child care providers effective on Monday, March 23, 2020 and in effect until April 6, 2020. However, The Department of Early Education and Care (EEC) has issued emergency procedures to exempt Emergency Child Care Programs. EEC intends to post a list of approved Exempt Emergency Child Care programs on Saturday, March 21, 2020. The list (which can be found here) will continue to be updated as more programs are approved. Parents will be responsible for reaching out to the programs and “vulnerable children” and “children of families who are required to work to maintain the health, safety and welfare of all Commonwealth citizens” will receive priority access. Health care employers should be considering how to get this information in the hands of their workforce and encourage their employees to sign up for emergency care if they need it. For employers considering an on-site child care program, click here for information on operating an Exempt Emergency Child Care Program in Massachusetts. Employers should be prepared to answer questions about days/hours of intended operation, age groups being served, and whether staff have undergone background checks. Note, that expedited status is being given to providers that already have a current license, are staffed with educators with confirmed background checks, and have undergone a site visit within the last six months.
• North Carolina. In North Carolina, the Department of Health and Human Services ordered all schools to close, but permitted child care centers to remain open for children of health care workers and first responders. Out of approximately 4,500 childcare facilities in the state, 1,500 are remaining open. The State is considering mobilizing free public childcare options, but has yet to develop a clear plan. On March 19, the Department of Health and Human Services announced flexibility in policy and regulatory requirements with respect to child care facilities, which are available here.  On March 20, Governor Cooper issued Executive Order No. 119, delegating authority to the Secretary of the Department of Health and Human Services to waive regulations in order to expand access to child care and support local health departments.  In the Executive Order, the Governor explains that “North Carolina has a critical need to support first responders, hospital staff, front-line health care providers, nursing and adult group home staff,” among others, and “[r]ecognizing that childcare is an essential service for these priority groups during this time, I hereby encourage communities across the State in counties, cities and municipalities to support the continued operation of child care facilities for children of all ages.”
• New York. On March 17, 2020 Governor Cuomo issued Executive Order, 202.4 directing every school in the State of New York to close for a period of two weeks. School districts were ordered to submit a plan for providing child care to the children of essential employees. On March 18, 2020, Governor Cuomo issued Executive Order 202.5, which among other things, provided important regulatory relief for child care providers and school districts wishing to provide child care on their premises.
  
  On March 19, 2020, the New York State Office of Children and Family Services (“OCFS”), Division of Childcare Services, published an Informational Letter, COVID-19 Guidance to Childcare Providers, which clarifies that “child care programs are NOT being ordered to close” as “[c]hild care is considered to be an essential function critical to enabling parents - especially our first responders, health care workers, and direct care workers to go to work.”
  
  The Letter further explains that under Executive Orders 202.1 and 202.5, Governor Cuomo granted OCFS the authority to waive certain regulatory requirements to meet the need for child care services, especially for first responders, health care workers, and other critical staff. Specifically, Executive Order 202.1 waived statutory and regulatory requirements to allow flexibility for providers while continuing to protect the health and safety of children. The requirements eligible for a waiver include changes to maximum capacity, staff/child ratios, physical space requirements, child care worker qualifications, and annual training requirements, the ability for providers to move in between programs, and additional flexibility for local districts in determining eligibility for child care subsidy.  Executive Order 202.5 waived certain background check requirements so to allow teachers, school-related personnel, employees at health care facilities, and others with child care or education experience to begin work immediately during the temporary emergency basis to ensure adequate supervision after a criminal history review.  Executive Order 202.5 waived the requirement, for the duration of the emergency, that programs operating in schools not providing compulsory education must have OCFS licensure, meaning school districts can provide child care free from OCFS regulatory requirements.
  
  Questions regarding child care providers can be directed to OCFS Division of Child Care Services Regional Offices: https://ocfs.ny.gov/main/childcare/regionaloffices.asp.
  
  On March 23, New York City opened 93 Regional Enrichment Centers (“RECs”) across all five boroughs for the children of first responders, health care providers, transit workers and other key personnel who live in New York City.  RECs are open from 7:30 am to 6:00 pm.  Additional information regarding enrollment is available at: https://www.schools.nyc.gov/enrollment/enrollment-help/regional-enrichment-centers.  In central New York, Vanderkamp (an area non-profit) has partnered with the Oswego County Health Department to establish an emergency program to assist health care workers and first responders. Those employees will receive priority registration status.
• Texas. Governor Abbott’s recently issued Executive Orders did not shut down child care centers. Instead, he is urging them to remain open as long as they follow the guidelines issued by the Texas Health and Human Services Commission. With no statewide mandate to close, centers are making individual determinations as to whether or not to stay open and this has left some families struggling to find care. Health care employers can help by determining whether their employees are in need of care and, if so, directing them to the HHS website for information on how to locate open centers.
• Washington, DC. District of Columbia Mayor Muriel Bowser has ordered DC Public School facilities to remain closed through April 24. On March 13, Mayor Bowser recommended - but did not require - that the District’s childcare facilities close through the end of March.  As of March 20, about 400 of the District’s 471 licensed childcare facilities had closed and more closures were expected.  On March 21, the District reported it was working to find additional childcare options for parents who work in the medical field and are supporting the fight against COVID-19.  To date, no such options have been announced.
• Washington. In Washington, child care providers are not under a mandate to stay open or to close. The State considers voluntary closure decisions to be business decisions left for each facility to determine based on health and safety concerns. The Washington State Department of Children, Youth & Families is encouraging centers to remain open and is working with the State Department of Health to develop specific child care guidance in order to manage public health concerns. Some of this guidance includes reducing group sizes to no more than 10 children and adults, maintaining the same groups day to day, and planning activities that do not require sharing or close physical contact. With the shutdown of fitness and recreational facilities, the YMCA of Greater Seattle is transforming its King County branches into child care centers dedicated to serving the families of essential workers. This group includes medical providers, first responders (as defined by state law), and other essential workers like grocery and drug store employees.