Childcare is essential for essential workers, but what if you’re not one of them?

New York State on Pause (Executive Order 202.6, the provisions of which have been extended through mid-June) has never given explicit guidance about whether parents who have “non-essential” jobs are allowed to continue to have nannies come into their home. The result of this confusion has been ad hoc arrangements throughout Brooklyn in which parents and nannies are navigating complex issues of both labor rights and epidemiology without any guidance from the state or local government.

On March 22nd, Hand in Hand, an advocacy organization that educates families about how to fairly treat the domestic workers they employ, issued its own guidance on Executive Order 202.6: nannies should continue working only if their employers are themselves designated as essential workers. But these recommendations don’t have the force of law. This leaves approximately 17,500 nannies in New York state largely on their own in their negotiations with their employers. Many of these workers are undocumented, though there isn’t clear data about how many–and nationwide, are three times more likely to be living in poverty than other workers.

Sarah Hughes, who lives in Flatbush, is an adjunct lecturer who teaches labor rights at CUNY and a former union organizer. She is also a member of Hand in Hand. Over the past few months, she said, “it’s become increasingly clear that thousands of women in the city, doing the critical work of raising children, went completely unnoticed by this administration.” (Governor Cuomo’s office did not respond to an email requesting comment.)

Hughes is also the parent of a 9-month-old, and she and her husband have continued paying their babysitter for her usual hours, even though she hasn’t come to work since early March. Not having the sitter has had its challenges. She described being on Zoom calls with undergraduates and having to carefully angle the camera so that students couldn’t see that she was breastfeeding. Though she and her family have been able to make it work, Hughes described the current situation, in which families and nannies are trying to figure this out on their own, without financial assistance or clear guidance from the government, as “untenable.”

Hand in Hand’s official recommendations for non-essential working parents is to ask their own employers for flexibility, and to use the app Wiggle Room as an alternative to finding care. The premise of that app is that you can program a “network” of potentially dozens of family and friends who volunteer to provide childcare—an idea that’s hard to reconcile with keeping necessary social distancing measures.

On the other hand, what’s good from a virus control perspective is often at odds with some important principles of worker’s rights. Many parents who have continued to ask their nannies to come to work, or who are now asking them to return, are demanding tight restrictions on who they see and where they go in, leaving nannies in the position of essentially having to forgo contact with anyone in their lives other than their employers.

Martine (who asked that her real name not be used) has worked as a nanny in Brooklyn for 20 years, and has nannied for seven years for her current employer. She is a single mother to a 13-year-old son. In many ways, the family she works for has complied with Hand in Hand’s guidance–since early March, the family for whom she nannies has paid her a full salary while she stayed home.

During the weeks she was home, she contracted COVID-19. She described it as a scary time, but said that she refused to go to the hospital because she was certain that she’d pick up something there to give to her son. She has since recovered, and her employer has now asked her to return to work, which she wants to do. However, the family has requested that she not leave her home at all, except to come to their home. When she’s at work, however, the family asks that she take their children on walks and to the park.

“To me what difference does it make?” she asks. “They don’t want me to go outdoors for myself, but when I go to work, I have to go outdoors? I love my employers, but that part really doesn’t make sense.” When she returns to work, her 13-year old will be home on his own—it’s still unclear whether any of the camps will be open, and Martine is concerned about him leaving the house at all.

Sarah Hughes, the Hand in Hand member, said she sees major worker’s rights issues with families trying to have their nannies come back on the condition that they don’t see anyone else. As she put it “[t]hese questions: ‘who did you see, who did your family see, what do your family members do for work–are incredibly intrusive.”

Parents are, however, becoming increasingly desperate for childcare help.

Valerie McLaughlin lives in Carroll Gardens and is the mother to three daughters, ages 6 and under. She works as an attorney at a non-profit law firm that represents foster children and is, under no reading of the executive order, considered an “essential worker.” But, her court deadlines haven’t changed. The foster children she represents, many of whom are in congregate care settings, have been extremely hard hit by the effects of this pandemic.

McLaughlin has the added pressure because this is her first job out of law school, and because she is the only parent at her firm. She doesn’t feel like it was an option to just leave work undone, potentially for months, while she’s just starting out as an attorney. But she also expressed deep discomfort with the fact that her nanny, who she described as “the exact demographic that’s being the worst hit by this” – a Trinidadian woman in her 60s -was coming to work and possibly putting herself at risk. In April, her nanny was concerned that she’d been exposed to the virus, she had her stay home for approximately two weeks. “Those days are tough,” she said. “I was basically just trying to keep them within eyesight at all times.”

Even with her nanny now back at work, she described the state of her house as “shredded” and said that she is constantly having to shoo her daughters away or outright ignore them when they try to show her artwork or try to get her attention, which she worries isn’t a healthy dynamic for them. Where does her children’s other parent—her husband—fit into this? She laughed. He is a Wall Street trader—also not considered “essential” by executive order, but certainly considered so by his boss. “When the markets are open, there’s no questions asked, he has to be there. There are absolutely no concessions for him being a father or this being a time of crisis.”

The fuzziness in the executive order and the lack of guidance to both employers and employees is part of a long history of domestic workers being excluded from legislation, Gabriela Siegel, an employment attorney who specializes in representing domestic workers at the non-profit Make the Road New York, explained.

The 1935 National Labor Relations Act excluded domestic workers and farm workers. Though New York state passed a Domestic Worker’s Bill of Rights ten years ago, domestic workers who work in households with fewer than four employees are still not included in New York City’s human rights law, which would grant them protection from discrimination and grant them reasonable accommodations for an illness or disability.

“This is a space where even documented people are paid off the books,” Siegel said. “And even those who are documented and are thus eligible for unemployment insurance are worried about getting their employers in trouble for paying them off the books.” She sees what she described as “a failure of the state and the governor to create a safety net for these workers.”

This lack of a safety net can be devastating for household employees. One of her clients, a nanny, worked for a family who moved out of the city, but asked her to remain in their city home while they were gone to housesit and clean. She gave up her own housing to move into their home, because it was the only condition under which her employers would continue to pay her. The family then asked her to clean the home of a neighbor who, she found out, had a COVID positive household member. When she didn’t agree to clean the neighbor’s home, the family fired her and has asked her to move out.

As an undocumented worker, she is not eligible for unemployment insurance. When she sought Siegel’s advice, about the matter, however, she emphasized that it was extremely important to her to resolve things amicably with the family. She needs a new nannying job, and knows she can’t get one without a good reference.