As we previously blogged, employers are obligated under the Families First Coronavirus Response Act (FFRCA) to provide employees up to two weeks (80 hours) of paid sick leave and up to 12 additional weeks of paid, expanded family and medical leave to an employee whose child’s school or child care provider is closed or unavailable for reasons related to COVID-19. Going into summer, it was unclear whether these obligations would continue to apply, given that schools would not be in session during this time anyway. The Department of Labor, Wage and Hour Division recently issued a Field Assistance Bulletin that shed some much-needed light on this issue.
The bulletin addresses when an employee can take FFCRA leave based on the closure of a “summer camp, summer enrichment program, or other summer program for COVID-19 related reasons.” According to the DOL, the closure of a summer camp/program will not be treated any differently than the closure of other places of care, such as a daycare center. Employees therefore may request leave if their child’s camp/program is closed. For purposes of the FFCRA, the word “closed” is interpreted broadly to include partial closures and capacity reductions caused by COVID-19.
The key questions that employees need to answer is whether their child would have otherwise been at the camp/program if not for COVID-19. Parents need to establish this point by a preponderance of the evidence (i.e., it is more likely than not). One way an employee can satisfy this requirement is by showing that their child applied or was already enrolled in the program prior to COVID-19. Similarly, this requirement can be met by showing that the child attended the camp/program the previous year and was eligible to return. Submitting a deposit to the camp/program may also establish the necessary intent to enroll.
Employees cannot establish this requirement by showing that they had “mere interest” in a camp or program. The Department of Labor recognizes that there are a “multitude of possible circumstances under which an employee may establish” that their child would have been enrolled in the camp/program if not for COVID-19, and therefore declined to offer a “one-size-fits-all rule here.” Employers and employees who are unsure if their specific circumstances are covered under the FFCRA should consult with an attorney. If you have any questions about the FFCRA, or any other aspect of employment law, contact Thatcher Law Firm at 301-441-1400. www.ThatcherLaw.com. Email me at [email protected].