U.S. DOL Guidance on Employee Leave Rights When Summer Camps and Programs Close Due to COVID-19

Wilson Elser
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Wilson Elser

In response to the COVID-19 pandemic, many employees sought time off work under the paid sick leave or paid family and medical leave provisions of the Family First Coronavirus Response Act (FFCRA) to care for children at home because their schools or day care centers closed. As the end of the school year approached, many summer schools or camps cancelled programming. Others remain in limbo, awaiting governmental clearance and guidance to resume operations during the phased “re-opening” of the economy. All of this leaves parents and their employers questioning whether FFCRA provides leave when parents need to care for children at home because of closed summer camps or educational programs.

On June 26, 2020, the U.S. Department of Labor (DOL) issued Field Assistance Bulletin No. 2020-4. This guidance states FFCRA leave is available when a parent is unable to work or telework because a “place of care” is closed due to COVID-19-related reasons. The guidance further notes “place of care” means “a physical location in which care is provided” for a child, and this “includes summer camps and summer enrichment programs.”

Criteria for Coverage
Coverage exists where children were enrolled before a program closed. Recognizing that the uncertainties surrounding the pandemic resulted in camps or programs not taking enrollments, the guidance states coverage exists when a child attended a closed program in prior summers and was eligible to again participate this summer while also noting “there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program.”

The guidance provides a parent’s mere interest in a camp is not enough; it must be “more likely than not” the child would have participated in the underlying program. Evidence of planned participation cited in the guidance includes eligibility for participation, submissions of applications or payments of deposits toward such programs; however, the guidance makes clear there is no “one-size-fits-all” rule.

Beyond confirming FFCRA leave is available when summer camps or enrichment programs close, the guidance clarifies the type of information parents must provide employers to support such leave requests:

“An employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements [as leave due to closures of schools or day cares] and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed.”

In addition, parents should provide a statement affirming that no other suitable person is available to care for the child.

Enforcement
As these types of requests arise, employers would do well to work with their employees to explore whether evidence of planned participation exists before denying associated leave requests. An employer who improperly denies such leave could be subject to a DOL enforcement action or even a private suit.

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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