Legal publications are filled with articles about the impact of COVID-19 on the lives and careers of attorney parents, particularly women. A recent issue of the ABA Journal quoted the director of the Center for WorkLife Law as saying about the pandemic, “I do think we risk facing a generational wipeout of mothers’ careers if we don’t handle this properly.”¹ The messaging, as these articles continue to arrive in my inbox, is clear and dire: COVID-19 has set off a secondary crisis (the primary crisis being a pandemic) of parents having to decide between having a professional life or a family life, if parents are privileged enough to have that decision and not be forced to do both at the same time.

Running parallel to this discussion of the childcare crisis are stories of nursing homes overwhelmed by COVID, running short on funds and staffing and leaving residents without crucial care.² Facilities say they simply will not be able to care for our most vulnerable citizens without a substantial influx of cash. For individuals with disabilities living at home, family members quickly exhaust personal days while scrambling to find sufficient personal care workers.

I do not disagree with the “COVID caregiver crisis” messaging per se. However, anyone who thinks the “childcare crisis” or “caregiver crisis” started with COVID-19 and will be resolved upon a return to normal is oblivious to decades of this very same struggle happening daily without fanfare. I challenge you to find one young attorney with kids, or an attorney of any age with older parents or a sibling with a disability, who has not struggled with balancing work and caregiving responsibilities at some point in their careers.

Has COVID-19 made the situation for parents even more difficult with the emergence of virtual learning? Absolutely. But, have lawyer parents always struggled to juggle court deadlines and teacher conferences and urgent client requests and pediatrician appointments and so much paperwork no matter where we are? Yes. Did we already know that parents who are the primary caregiver for children are less likely to stay in the workforce, less likely to become partners in law firms, less likely to become CEOs in other professional arenas? Did we know that on the other end of the caregiving spectrum, a caregiver for someone with dementia is likely to shorten their own lifespan and be less well-off financially for retirement? Yes, yes, yes, yes, and yes.

These Are Not COVID Problems

Our desire as attorneys to analyze and solve problems tells us that if we can just “get past COVID” or “get back to normal,” then these problems will also fade. They will not. If we need perspective, we could talk to any of our family, friends, or clients who are taking care of not only children, but also parents or spouses or siblings. As an elder law and special needs attorney, I know that a huge proportion of my clients are living the permanent reality of caregiving for a family member with worsening dementia or caregiving for a child with a disability that is not going to improve. Likewise, parents entrenched in virtual learning will not magically be absolved of parenting issues when classrooms are in-person. These are not COVID problems.

A common refrain is that women, who disproportionately though not exclusively take on these caregiving responsibilities, simply need to lean in to their work and home responsibilities and learn to deal with the cost of having it all. In relation to the long-term care crisis, we are told the problem is that American families are broken and do not take responsibility for their elders like they used to. Both of these assertions are nonsense.

One of my elder law colleagues generously and frequently shares about her experience of working full time, only to go home and spend the other two shifts of the day caregiving for a child with significant disabilities. (If you wonder when she sleeps, so do I.) Countless other colleagues have cared for or supported a parent through dementia. So many more are parents of young children. We will all tell you that caregiver emergencies arise at precisely the same time as a work crisis. There are not enough hours in the day to do both jobs. You feel like you are performing both tasks all the time but neither one well. Sleep deprivation is standard. You cannot solve the problem by working harder or scheduling better.

Money can help, if you have it. My childcare bill each month for two kids is far greater than my mortgage payment. Not everyone can swing that. Some 63 percent of full-time working parents cannot afford childcare.³ As an elder law attorney, I commonly see my clients pay more than $10,000 per month for nursing home care for substantial periods of time before converting to Medicaid. Yet, neither private pay nor Medicaid coverage seems to ensure fully staffed facilities, and workers continue to be underpaid and overworked, if the facilities stay open at all.⁴ Childcare facilities tell a similar story.

The amount of unpaid care provided in the United States by family members, friends, and neighbors each year is astronomical. The value of this care for dementia caregivers alone was estimated at $244 billion in 2019, or 18.6 billion unpaid care hours.⁵ The economic cost to the U.S. economy of parents forced to leave the workforce to care for a child is estimated to cost the U.S. economy $57 billion per year.⁶ (Productivity decreases and reliance on public benefits increases.) The loss of talented attorneys who are forced out of practice for caregiving is difficult to quantify, yet clearly a great cost to our profession.

These are pre-COVID issues. COVID simply shoved them into the limelight. Therefore, striving to get back to normal, instead of facing what COVID has laid bare about our society, is essentially a choice to move backward instead of make progress based on what we have learned.

Welcome Changes During the Pandemic

We have seen some welcome changes during pandemic practice. Court scheduling conferences are conducted by phone rather than in person. Appearances in most court proceedings are now virtual. While certainly not ideal for many cases, this greatly increases access to justice for some clients who are caregivers or have disabilities themselves for which in-person court appearances are difficult or impossible. We are seeing local budgets that include long-overdue investments in court technology.

Outside the courtroom, virtual meetings are not ideal in all situations but do permit a parent to make it to the early morning meeting that is otherwise a half-hour drive from day care drop-off. They allow clients to discuss special needs planning with their attorney without having to arrange respite care for their child a month ahead of time. Elderly clients with unsteady legs are thrilled with the idea of a curbside signing versus walking into an office, especially in slippery weather. Most everyone is happy when “the meeting that could have been an email” actually becomes an email.

Use the Resources We Have to Effect Change

As we move forward in the coming weeks and months, a quick fix to the caregiver crisis for children or senior citizens or people with disabilities is not realistic. However, we can use the resources we have to effect change. We can vote for political leaders who give attention to these issues. We can use our positions as leaders in our communities and professional circles to advocate for changes that will make life more manageable for our colleagues and clients alike.

We can support initiatives currently working to address the caregiver crisis. For example, the report “Wisconsin Caregivers in Crisis: Investing in Our Future”⁷ was released in September 2020. It is the product of more than a year of work by the Governor’s Task Force on Caregiving. It frames the problem and discusses 16 concrete recommendations. (Among the members of that task force are talented members of our State Bar.) If you have not yet read it, please do. While this task force is focused on caregiving for seniors and individuals with disabilities, many of the recommendations could apply to the childcare sphere as well.

When we see innovation and modifications that help caregiver life be more manageable, we can advocate for things to not return to the way they were. And, while mere awareness will not solve the issue, we can keep discussing the difficulties of caring for a disabled child when day programs are closed, or struggling to find a personal care worker for mom with dementia, or finding that an extensive legal career has left you woefully deficient in teaching math to a middle-schooler, because the overwhelming feeling of “going it alone” is one of the worst side effects of being a working caregiver. We can do better than normal.

Cite to 93. Wis. Law. 48-51 (December 2020).

Endnotes

¹ Liane Jackson, Female Lawyers Face Unique Challenges During the COVID-19 Pandemic, ABA J. (Oct. 1, 2020).

² Ina Jaffe, For-Profit Nursing Homes’ Pleas for Government Money Bring Scrutiny, npr.org (Oct. 22, 2020).

³ TIME, The Childcare Crisis, (last visited Nov. 15, 2020).

⁴ Lauren Anderson, The Nursing Home Funding Crisis, BizTimes (Oct. 14, 2019).

⁵ Alzheimer’s Ass’n, 2020 Alzheimer’s Disease Facts and Figures (Mar. 10, 2020).

⁶ The Childcare Crisis, supra note 3.

⁷ Governor’s Task Force on Caregiving, Wisconsin Caregivers in Crisis: Investing in Our Future (Sept. 2020).