DOL Issues Guidance on Eligibility for FFCRA Paid Leave for Summer Camp and Program Closures

On June 26, 2020, United States Department of Labor (USDOL) Wage and Hour Administrator Cheryl Stanton issued Field Assistance Bulletin No. 2020-4 (FAB 2020-4) regarding the Families First Coronavirus Response Act (FFCRA) and leave eligibility for employees due to the closure of summer camps and programs. FAB 2020-4 is an internal memorandum that provides guidance to investigators and offers insight to employers in determining employee eligibility for FFCRA expanded family and medical leave and paid sick time due to "place of care" closures for children.

FFRCA Overview

As noted in our prior advisory, employees may take up to 12 weeks of FFCRA expanded family and medical leave and two weeks of FFCRA paid sick leave when an employee is unable to work or telework due to the need to care for his or her child whose "place of care" is closed due to COVID-19. A "place of care" is a physical location where care is provided for the employee's child, and includes summer camps and programs.

Pursuant to the FFRCA, employees who request leave or paid sick time must provide employers with information to support the need for leave. In addition to providing a statement that the employee is unable to work because of place of care closures, employees must also provide the name of the child, the name of the place of care, and a statement that no other suitable person is able to care for the child. As discussed below, this documentation may be limited because many summer camps and programs did not open this summer because of COVID-19.

Employees May Be Eligible for Leave Due to Closed Summer Camps

With schools out for summer, and summer camps and programs closed due to COVID-19, employees may qualify for FFCRA expanded family and medical leave and paid sick leave because of these summer program closures. Notably, unlike school and other place of care settings that were open and in session when the COVID-19 crisis began in the spring, summer camps and programs were not in session and closed or never opened in response to COVID-19 before children could attend or even enroll. Therefore, it may be difficult to determine whether a summer camp or program would have been the place of care for an employee's child, which is why the guidance provided in FAB 2020-4 and by USDOL should be carefully considered by employers.

USDOL previously issued limited guidance on this topic in its answers to frequently asked questions and noted that an employee may be eligible to take leave if his or her child's care provider is closed during the summer- including if a camp or program that the child was enrolled in is closed or unavailable for a COVID-19 related reason. FAB 2020-4 provides additional information surrounding what information may be sufficient to establish that a summer camp or program is a closed place of care for an employee's child and, significantly, notes that a summer camp or program may be "closed" for FFCRA purposes even if it is operating at a reduced schedule or only partially closed.

FAB 2020-4 states that identifying the name of a camp that a child was enrolled in would satisfy documentation obligations, but notes "[t]here may be other circumstances that show an employee's child's enrollment or planned enrollment in a summer camp or program" and advises investigators to consider "whether there is evidence of a plan for the child to attend the camp or program or, short of 'plan' whether is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19." While mere interest in a camp may not be sufficient, affirmative steps short of actual enrollment may be enough, including the following:

• Submission of an application.
• Submission of a deposit.
• Prior attendance at a camp/program and current eligibility.

Wage and Hour Administrator Stanton instructs her field investigators there is not a "one-size-fits-all rule here," but that current enrollment or recent prior attendance are sufficient to indicate that a summer camp or program would have been the place of care for a child, however, neither are necessary. There could be situations where a family recently moved to a new area, or where a child only recently met age requirements to attend a summer program and had not previously attended. Based on the facts of each situation, there may be sufficient evidence to establish that a camp or program is a closed place of care for an employee's child, thus entitling the employee to leave under the FFCRA.

Therefore, employers should proceed cautiously before denying FFCRA leave for place of care closure issues even if a child had not already enrolled or had not previously attended the camp or summer program.

Recommendations for Employers

The USDOL FAB makes clear that there is no "one-size-fits-all" approach to determining if an employee qualifies for FFCRA leave based on closure of a summer camp. While the FAB provides methods an employer can use to confirm that the summer camp qualified as childcare for the purposes of granting FFCRA leave, it expressly states these are simply examples and employees may prove they qualify for leave in a myriad of other ways.

Because of the flexibility in qualifying for FFCRA leave that is outlined in the FAB, employers are advised to proceed with caution before denying a childcare leave on the grounds that the identified summer camp was not a bona fide "place of care." For the purposes of ensuring the FFCRA leave qualifies for a tax credit, an employer must only collect the name of the place of care and children(s) name(s) and age(s). There is no independent verification requirement.

Additionally, in responding to an employee's request for childcare leave due to place of care closure, employers must keep in mind that in addition to FFCRA, they should look to state and local sick leave requirements. Many localities have expanded the qualifying events of paid leave to include closed childcare.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.