By: Miriam L. Rosen, McDonald Hopkins, PLC
As the COVID-19 pandemic wages on, the U.S. Department of Labor continues to provide guidance on application of Families First Coronavirus Response Act (FFCRA). In a Field Assistance Bulletin directed at Wage and Hour Division Investigators, the DOL explained when employees may be eligible for FFCRA child care leave when a child’s summer camp or other summertime place of care is closed.
Under the FFCRA, employees who work for covered employers are eligible for up to twelve weeks of child care leave when they are unable to work or telework due to the need to care for a child whose place of care is closed due to COVID-19. As the school year has transitioned to summer, the DOL’s guidance makes clear that the child care leave provisions continue to apply when an employee is unable to work because they need to care for a child who would have attended a summer camp or program, but for a COVID-19 limitation.
The DOL’s guidance indicates that, as with school or child-care center closures, an employee who requests child care leave based on a summer camp/program closure or enrollment restriction must provide the employer with certain information:
- the name of the camp or program that would have been the place of care had it not been closed
- the name of the child, and
- a statement that no other suitable person is available to provide care
Because summer camp, unlike school, is not required, the DOL’s guidance provides investigators some additional factors to consider in determining whether an employee is eligible for child care leave. The guidance advises WHD investigators to consider whether the child applied to or was enrolled in the summer program before it closed, whether they had attended the camp in prior summers, or other evidence suggesting that the child would have been cared for in that environment but for a COVID-19 related closure. Investigators are instructed to determine whether there is evidence that the employee planned for the child to attend the camp or program, such as enrollment prior to cancellation, or an application submitted, or a deposit paid. At a minimum, they must determine whether it was more likely than not that the child would have attended had the facility not been closed due to COVID.
Significantly, however, the DOL states that it is not adopting a one-size-fits all rule because of “the multitude of possible circumstances under which an employee may establish (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed due to COVID-19, his or her child would have nevertheless attended the camp or program had it not closed.”
Employers should consider the DOL’s guidance in responding to a request for FFCRA child care leave related to a summer camp closure. A camp closure or enrollment restrictions for a camp where the child was already registered is a clear situation where leave time should be provided. Practically speaking, however, employees may not have had summer plans in place when the pandemic hit. So, employers should proceed cautiously in evaluating and responding to leave requests even if proof of enrollment cannot be provided. Employers should note that the DOL is aggressively enforcing the FFCRA, so understanding and following the DOL guidance is an important aspect of ensuring compliance.
This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at email@example.com or at (248) 220-1342. Additional articles addressing the many legal and operational concerns impacting businesses as a result of the coronavirus crisis can be found at: https://mcdonaldhopkins.com/Insights/March-2020/Coronavirus-Legal-and-business-concerns
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