On June 26, 2020, the U.S. Department of Labor (DOL) provided guidance for its Wage and Hour Division (WHD) Investigators relating to when employees may be eligible to take paid family leave under the Families First Coronavirus Response Act (FFCRA) when they are unable to work because they are caring for a child whose summer camp or other summertime place of care is closed.
Recall that under the FFCRA, employees who work for companies of less than 500 employees are entitled to take up to twelve weeks of paid leave (at a reduced rate) when they are unable to work or telework due to the need to care for a child whose place of care is closed due to COVID-19 restrictions. While the law was initially intended to reach those workers who could not work or telework due to COVID-related school or child-care closures, as the pandemic drags on into summer, DOL has made clear that the same reasoning applies where an employee is unable to work because they need to care for a child who otherwise would be attending summer camp or a similar place of care. (Of course, a child-care center where the child would have received care but for a COVID closure also still qualifies the employee for FFCRA leave.)
DOL’s latest guidance clarifies that, 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, or similar summer program, must provide the name of the camp or program that would have been the place of care had it not been closed, the name of the child, and a statement that no other suitable person is available to provide care. While there is no hard and fast rule, DOL’s guidance directs WHD investigators to consider whether the child applied to or was enrolled in the summer program before it closed, whether they had attended the camp in prior summers, or other evidence suggesting that the child would have been cared for in that environment but for a COVID-19 related closure. Specifically, investigators are instructed to determine whether there is evidence of a plan for the child to have attended the camp or program, such as enrollment prior to cancellation, or an application submitted, or a deposit paid. At a minimum, they must determine whether it was more likely than not that the child would have attended had the facility not been closed due to COVID. 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 leave—but it is not necessary to prove conclusively that the child absolutely would have been enrolled prior to closure.
In many instances, this may be a simple question for the employer. If an employee shows that their child was enrolled in a camp that is now closed, and which would have been the provider of care during working hours, the case is relatively clear. Where it is less certain that the employee’s child would have been cared for at a given camp or program, employers are advised to proceed cautiously and seek counsel, particularly in light of DOL’s aggressive enforcement of FFCRA leave entitlements.