By: T. Christopher Bailey with Greensfelder Hemker & Gale P.C.
Under the Families First Coronavirus Response Act (FFCRA), employees may be entitled to up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave, of which 10 weeks are paid to care for a child based on the closure of the child’s school or place of care. When the spread of COVID-19 accelerated in March, most schools and daycares closed, creating problems for many parents who relied on these facilities to care for their children while the parents worked. As the summer months approached, a new question arose: whether parents would be entitled to paid leave under the FFCRA in the event a child’s summer camp, summer enrichment program or other summer activity closed — or never opened — for COVID-19 related reasons. Recent guidance issued by the U.S. Department of Labor (DOL) provides insight in answering this question.
Effective April 1, 2020, the FFCRA provides that FFCRA leave may be taken when an employee is unable to work or telework due to a need to care for the employee’s child because the child’s school or place of care closed due to COVID-19 related reasons. The DOL’s Field Assistance Bulletin issued June 26, 2020, clarifies that summer camps and summer programs qualify as a “place of care.” Thus, if a summer camp closes for COVID-19 related reasons after it opens, parents of children attending such a camp may find themselves entitled to FFCRA leave.
A more complicated question arises, however, when the summer camp or program cancels or never opens or limits the number of children it accepts due to COVID-19 related reasons. Might an employee be eligible for FFCRA leave for a program because of the cancellation of a summer program that never started? The Field Assistance Bulletin makes it clear that, under the right circumstances, the answer is yes. An employee is eligible for FFCRA leave if the employee is unable to work or telework due to a need to care for his or her child due to the cancellation of a summer camp or program where there is evidence of a plan for the child to attend the camp or program or, in the absence of such a plan, where it is more likely than not that the child would have attended the camp or program.
Evidence of a plan for the child to attend a camp or program may take many forms. Enrollment prior to the announced closure of the camp or program or submission of an application or deposit prior to the closure may be sufficient to establish a plan to enroll. Being wait-listed for a camp or program that limits participants may be sufficient. Prior attendance in the camp or program coupled with current eligibility to attend again may be sufficient to show that it is more likely than not the child would have again attended the camp or program.
Because of the numerous circumstances that could establish either a plan to send a child to a summer camp or program, or that it was more likely than not the child would have attended a summer camp or program, the DOL discourages a one-size-fits-all approach and encourages employers to look at all of the facts and circumstances before making a decision regarding an employee’s entitlement to FFCRA leave. Employers may want to engage in an “interactive process” with the employee, similar to that required when considering reasonable accommodation under the Americans with Disabilities Act, to ensure that all circumstances are known and considered before making a determination.
Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer questions related to COVID-19’s many effects on employers.