The coronavirus pandemic resulted in almost every state issuing shelter-in-place orders, which pertain to all but “essential businesses.” Most child care facilities and home day cares closed their doors, and many independent caregivers stopped coming to their clients’ homes. Parents need to know whether they are still obliged to pay for child care services that they are no longer receiving.
The answer depends on whether you and your provider have a written contract, and what that contract says (and whether you receive a subsidy). But what if you don’t have a written agreement, as is often the case with independent caregivers? In that case, the outcome will hinge on the application of basic contract principles.
If you take your children to a day care center or home, chances are you were given a contract to sign before your children could enter. Most states have licensing laws that require day care centers to have adequate space, amenities, insurance, and staffing. A thorough law will also require the center to give you a contract.
California’s law, for example, requires that the center offer an agreement that covers costs, payment details, notice periods for modifications to service and, most importantly, refund conditions. The law also requires that the contract specify the conditions under which the agreement may be terminated—by either side. (22 CCR Sections 101219.)
While insisting that the center and the parents enter into a written agreement is an important first step, the next part—specifying under what circumstances the center or the parents can terminate the agreement—is left up to the parties. So you’ll need to look at the contract, and search for words and phrases like these in a termination or closure clause:
If you receive a subsidy from the state and your provider is closed due to the coronavirus pandemic, the provider might continue to be paid for at least a month. And, if you cannot send your child to the provider due to the stay-home order, your child should not be disenrolled. Check with the state agency that administers your subsidy for the rules in your state.
Parents in California who receive subsidies can get excellent information from The Child Care Law Center, including details on Emergency Child Care vouchers.
If your children are cared for by an individual, and you do not receive a state subsidy, whether you must continue to pay for care depends on what your contract says or, lacking a contract, common principles of contract law.
Refer to the section above, “Termination Conditions in the Contract,” and look for the words and phrases explained there. If the contract doesn’t include them, read the next section.
Many parents who work with individual providers find themselves in this predicament: a contract that doesn’t address what happens if the individual can’t come to work (or the child shouldn’t interact with the provider); or no contract at all.
If you have questions about the validity or interpretation of your child care agreement, consider consulting with an attorney who practices general business law. Many lawyers are set up to work remotely, and they should be able to get the information they need either over the phone or by email or text (you can photograph your contract and text it). The questions you'll be asking are quite capable of being answered, even if you're not physically sitting in the lawyer's office.