Summer camp or summer program closures may provide child care leave under FFCRA

McAfee & Taft

McAfee & Taft

Just recently, the U.S. Department of Labor issued guidance regarding the closure of summer camps, summer enrichment programs, and other summer programs, and whether those closures would allow an eligible employee to take leave under the Families First Coronavirus Response Act (FFCRA). In general, as it relates to child care, the FFCRA allows an eligible employee to take paid leave if they are unable to work or telework due to a need to care for their child whose place of care is closed due to COVID-19-related reasons. A place of care includes summer camps and summer enrichment programs.

Employees who request such leave are required to provide certain information to qualify for leave, including, in the case of a summer camp closure, the name of the specific summer camp or program that would have been the place of care for the child if it had not closed.

Employees may be entitled to this leave even if their child had not already applied for or was not already enrolled in the summer camp. The reason for this is that many summer camps and programs closed in response to COVID-19 before any children began to attend or began to enroll.     

In determining whether employers are in violation of the FFCRA, federal investigators will assess whether there is evidence of a “plan” for the child to attend a summer camp or program, or short of a plan, whether it is “still more likely than not” that the child would have attended the camp or program had it not closed due to COVID-19. An employee-parent’s mere “interest” in a camp or program would not be enough. Enrollment in the camp or program would be sufficient; but, affirmative steps short of actual enrollment may also be sufficient, including submission of an application before the closure, submission of a deposit, or even the child’s prior attendance during the summers of 2018 and 2019 along with the child’s continued eligibility for the program.

The DOL makes clear that this is a fact-intensive inquiry. Therefore, employers should resist the urge to make one-size-fits-all decisions when determining whether an employee qualifies for FFCRA leave based on summer camp closures.

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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