Employers in the process of reopening this summer are frequently fielding a novel question from employees: requests for time off to care for a child whose summer plans have been disrupted. Fortunately, the Department of Labor (DOL) recently issued guidance regarding when an employee may take leave under the Family First Coronavirus Response Act (FFCRA) to care for their child based on the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons.
For all employers with fewer than 500 employees, the FFCRA requires companies to provide eligible employees with up to 12 weeks of paid leave if an employee is unable to work or telework due to a need to care for their child whose place of care is closed for reasons related to COVID-19. At the start of the COVID-19 pandemic – which began during the school year – employees’ requests for leave focused on the closure of schools and daycares, as well as the unavailability of child care providers. As temperatures begin to rise, however, requests are shifting to employees’ inability to work as a result of disrupted plans for summer camps and programs. The DOL’s new guidance clearly establishes that employees may qualify for leave under the FFCRA if they are unable to work as a result of the closure of summer enrichment programs and summer camps.
An employee who requests FFCRA leave because of cancelled summer plans must provide information supporting their need for leave, including:
- the name of the child;
- an explanation of the reason for leave;
- a statement that the employee is unable to work because of that reason;
- the name of the school or place of care (i.e., the summer camp, etc.); and
- a statement that no other suitable person is available to care for the child.
The DOL’s guidance aims to assist employers in assessing whether a particular request qualifies for FFCRA leave, observing that “determining whether a camp or program is the place of care of an employee’s child may be confusing and requires clarification.” Among other things, the guidance clarifies that employees cannot take FFCRA leave based on the closing of a summer program or camp the child has never attended unless there is some indication the child would have attended had the program not closed in response to COVID-19 (e.g., submission of an application or deposit). Simply having an interest in attending the camp or program is generally insufficient.
Notably, the DOL explains that a summer camp or program may also be “closed” for the purposes of FFCRA if it is partially closed or is operating at a reduced capacity, such that some children who would have attended that camp or program this summer may no longer do so. Accordingly, employers should not be too hasty in denying FFCRA leave simply because a particular camp is still operating.
If you have any questions about any aspect of FFCRA leave or any other of the many rapid developments related to the coronavirus pandemic, please contact a member of AGG’s Employment Law Team.