DOL Provides Guidance on When the FFCRA Covers Summer Camp, Summer Program Closures

Attorney Nicholas Kanter

Nicholas Kanter | Shareholder

June 29, 2020

Chrystal Ferber | Associate

June 29, 2020

On June 26, 2020, the U.S. Department of Labor (DOL) published guidance on when an employee may take leave under the Families First Coronavirus Response Act (FFCRA) to care for their child based on a COVID-19 related closure of a summer camp, summer enrichment program or another summer program. Importantly, the guidance clarifies when summer camps and programs constitute “places of care.”

Under the FFCRA, the Emergency Family and Medical Leave Expansion Act (EFMLEA) provides partially paid leave for eligible employees who cannot work (or telework) due to a need to care for their child whose place of care is closed due to a COVID-19 emergency.

As the pandemic emerged during the 2020 spring academic semester, determining whether a school closed for COVID-19 related reasons was a relatively straightforward task. While the DOL’s regulations generally recognize summer camps and programs as “places of care,” it is more difficult to assess when a camp or program specifically qualifies because many of these locations were closed by the pandemic before enrollment ever began.

Determining whether a summer camp or program qualifies as a place of care is a fact-based inquiry. The clearest example of when an employee will satisfy the requirement includes when the employee’s child was already enrolled in the summer camp or program before it closed due to COVID-19. The analysis is more involved when a child attended camp in previous years but had not yet enrolled for Summer 2020. The guidance states previous attendance alone is not sufficient when the child attended during the summer of 2017 or earlier, but not during 2018 or 2019. The guidance makes clear that a parent’s mere interest in a camp or program is also not enough.

Employers deciding whether to grant EFMLEA leave to employees in this context should consider whether it is “more likely than not” the child would have attended the summer camp or program had it not closed due to COVID-19.

Employees seeking EFMLEA leave must provide the following information orally or in writing to employers:

  1. The employee’s name;
  2. Date(s) for which leave is requested;
  3. Qualifying reason(s) for the leave;
  4. An oral or written statement that the employee is unable to work because of the qualified reason for leave;
  5. The name and age of the child being cared for;
  6. The name of the school, place of care, or child care provider that has closed or become unavailable; and
  7. A representation that no other suitable person will be caring for the child during the period for which the employee takes school-closure leave.

The recent guidance specifies that employees who request leave to care for their child based on the closure of summer camps and programs are subject to the same requirements above and should provide the name of the specific summer camp or program that would have been the place of care for their child had it not closed.

Nicholas Kanter and Chrystal Ferber are employment defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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