As we previously advised, the Families First Coronavirus Response Act (FFCRA) requires covered employers (most public employers and private sector employers with fewer than 500 employees) to provide paid leave to employees who are unable to work due to COVID-19 related reasons, including in circumstances where the employee’s child’s “school” or “place of care” is closed as a result of COVID-19. While the law was seemingly intended to assist workers who could not work due to COVID-19-related school or child-care closures, as the school year has concluded and the pandemic still looms large as we make our way into the summer months, employers and employees alike are now facing changing child-care dynamics.
On June 26, 2020, the U.S. Department of Labor (DOL), Wage and Hour Division issued Field Assistance Bulletin No. 2020-4, providing welcome guidance to employers on when an employee may take leave pursuant to the FFCRA to care for a child whose summer camp, summer enrichment program, or other summer program is closed for COVID-19 related reasons.
The DOL’s guidance first clarifies that summer camps and summer enrichment programs are considered “places of care” under the FFCRA because they are physical locations in which care is provided for the employee’s child while the employee works. Additionally, although many camps and summer programs may have reopened, they may still be considered “closed” for purposes of FFCRA if they are operating at a reduced capacity, such that some children that would ordinarily have attended that camp or program might not be able to do so.
The DOL’s guidance next goes on to explain how an employee may qualify for child-care leave based on the closure of a summer camp, summer enrichment program, or other summer program. As with school or child-care center closures, an employee who requests leave to care for a child based on the closure of a summer camp, summer enrichment program, or other summer program must provide:
In addition, the employee must now also demonstrate that the “specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons.”
The DOL’s guidance explains that there is not a “one-size-fits-all rule” with respect to the employee’s demonstration it was the employee’s plan to send their child to a summer camp, summer enrichment program, or other summer program. However, employees may support their need for FFCRA-related leave for summer program closures by, among other things, demonstrating that their child applied to or was enrolled in a program before it was closed due to COVID-19, or that the child attended a camp or program in prior summers and was eligible to attend again, or other similar circumstances to show an actual or planned enrollment in a camp or program.
The DOL confirmed that a parent’s “mere interest” in a program generally will not be sufficient to show the child would have been in summer care and entitle the employee to FFCRA-related leave. However, the DOL’s guidance explains that during any DOL investigation evaluating whether an employer improperly denied FFCRA leave to an employee, it is not necessary for the employee to prove conclusively that the child absolutely would have been enrolled prior to closure had it not closed for COVID-19 related reasons. Rather, the enrollment must only be proven by a preponderance of the evidence (i.e., whether it is more likely than not).
As such, when dealing with an employee request to use FFCRA-related leave due to the closure of a child’s summer camp or enrichment program, covered employers should consider this same standard: whether it is more likely than not the employee would have sent their child to a summer program had it not closed due to COVID-19. As the DOL cautioned that no “one-size-fits-all” rule applies to this scenario, employers should approach these requests flexibly, take caution to review all of the facts and circumstances surrounding an employee’s request, and discuss with counsel if necessary.
In addition, as with all FFCRA-related leave requests, employers should carefully document the basis for the requested leave and track leaves granted, taken, and denied in order to comply with recordkeeping requirements and to obtain applicable tax credits.
To learn more about how the new DOL FFCRA guidance might affect your business, contact: