Department of Labor clarifies FFCRA Leave based on summer camp closure is similar to leave based on school or day care closure

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On Friday June 26, the Department of Labor (DOL) issued clarification guidance regarding the availability of Family First Coronavirus Response Act (FFCRA) leave.  Specifically, the DOL stated that FFCRA leave is equally available for summer camps, summer enrichment programs or other summer programs as it was available for day cares or schools.

As a reminder, the FFCRA requires covered employers to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid.  FFCRA leave may be taken if the employee is unable to work or telework due to the need to care for his or her child whose “place of care” is closed due to COVID-19 related reasons.

On Friday, the DOL clarified that a “place of care” is a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs.

The requirements for employees remains the same.  An employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason. Additionally, in the case of leave to care for the employee’s child whose summer camp or program is closed, the employee must provide the name of the child, the name of the summer camp or other program, and a statement that no other suitable person is available to care for the child.

The requirement to name a specific summer camp or program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again.

The expectation that employees take FFCRA leave based on planned summer enrollments is not different from the closing of other places of care, such as a day care center. An employee generally could not take FFCRA leave to care for his or her child based on the closing of a day care center that the child has never attended, unless there were some indication that the child would have attended had the day care center not closed in response to COVID-19.  But, the DOL does note that a “summer camp or program may be ‘closed’ for the purposes of FFCRA leave if it is partially closed for reasons related to COVID-19 i.e. operating at a reduced capacity, such that some children that would have attended that camp or program this summer may no longer do so.  In such instances, the same analysis as to whether the child would have attended that specific summer camp or program but for its partial closure due to COVID-19 is applicable.”

We at Hogan Lovells remain committed to keeping you up to date on all things COVID-19.  For more information, contact an author of this article or the lawyer with whom you work.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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