At this point, parents are all too familiar (and likely exhausted) with making alternative arrangements to deal with at-home children who are missing out on school or day care due to COVID. As the school year has concluded across the country, employers and employees alike are now facing shifting child care dynamics with the advent of summer camps and programs. Today, the U.S. Department of Labor, Wage & Hour Division (WHD) clarified its enforcement position in Field Assistance Bulletin No. 2020-4 (FAB), confirming that eligible employees may take paid and/or extended leave under the federal Families First Coronavirus Relief Act (FFCRA) if their minor children’s summer camps or other programs are closed, as well as providing eligibility guidance for such leave.
Specifically, in late March 2020, Congress passed the FFCRA, partly in response to parents’ urgent and unexpected need for leave to care for children as a result of school and child care center closures due to the coronavirus crisis. The FFCRA allows up to 12 weeks of paid sick leave and expanded family and medical leave to cover employees who need to care for a child because the child’s school or place of care is closed due to COVID. The FFCRA also significantly relaxed eligibility requirements for employees. The FFCRA regulations, which were issued in April, did not specify whether employees could take FFCRA leave due to COVID-related cancellations of summer camps or similar summer activities. Today’s WHD guidance answers that question in the affirmative.
Under the regulations, parents may take FFCRA leave if a child’s “school” or “place of care” is closed due to COVID. 29 C.F.R. §§ 826.20(a)(v), (b). A summer camp or similar program is not a “school”; whether such summer activities are “places of care” is less clear. To resolve any ambiguity, the WHD confirmed that a summer camp or similar summer activity is a “place of care,” meaning that eligible employees are entitled to take FFCRA leave if their child’s summer arrangements are canceled due to COVID and they need leave to care for that child.
The FAB also addresses the scenario where children never began attending summer camps or care facilities due to preemptive closures or cancellations (unlike schools or care facilities that the child was already regularly attending prior to COVID). To determine whether the summer camp or care facility qualifies as a “place of care”—entitling the employee to FFCRA leave—the employer must evaluate whether the closed facility would have been the child’s place of care but for the COVID cancellation. But when the child had not yet been enrolled, the FAB explains that if there was a plan for the child to attend the camp or summer care facility, then the employee is entitled to take FFCRA leave.
The FAB emphasizes that there are no “one-size-fits-all” assessment criteria. Current enrollment or recent prior enrollment can be sufficient. But other, less concrete evidence may suffice as well. For instance, a “plan” to attend camp can be evidenced by the child’s attendance at the same camp in prior years, provided that the child remained eligible for that camp (e.g., had not “aged out”), or submission of an application or deposit to the camp. Even where there is no prior history with a summer camp, FFCRA leave may be available. For instance, a child may recently have become eligible for that camp or summer program by reaching the age minimum or satisfying geographic restrictions, or a parent may have delayed making arrangements for summer camp due to the uncertainty of the current situation. In such cases, other evidence may be available, such as being waitlisted for the program when it reopens, or evidence of an attempt to register rejected due to COVID-related group-size limitations. Importantly, the FAB notes that the employee’s mere interest in a particular summer camp is insufficient to determine they had a plan to send their child to a certain summer care facility.
If an employee wishes to take FFCRA leave for summer child care closures, he or she must provide the reasons for the requested leave, the name of the child and care facility that the child would have attended but for the closure, as well as a statement that no other suitable person is available to care for the child. (This is in addition to basic eligibility information such as the reason the employee is unable to telework, the age of the child and, if over 14, the special circumstances requiring care during daylight hours.) The employer may require the employee to submit this information in writing, and may request additional information as needed. If the employee fails to provide requested information as required for the employer to claim a tax credit, the leave may be denied. (See our prior client alerts on documentation requirements from June 2 and June 4.)
Employers should expect to receive an influx of requests for FFCRA leave for child care reasons over the summer and into the fall months, depending on how schools decide to conduct classes (e.g., more remote learning, alternating days or weeks, periods of closure during COVID resurgence, etc.). Employers should carefully document, among other things, the basis for the requested leave, and must track leaves granted, taken and denied leave to comply with recordkeeping requirements and to obtain applicable tax credits.