As you may remember, the Families First Coronavirus Response Act (FFCRA) provides eligible employees with certain rights to protected leave when their dependent children’s schools or childcare facilities are closed or otherwise unavailable for COVID-19 related reasons such that the parent is needed to care for the child, and therefore unable to work or telework.
Last week, the DOL issued updated guidance clarifying that employees would be eligible for FFCRA leave to care for their children due to the closure of a summer camp, summer enrichment program, or other summer program they would have otherwise attended, just as they would for school during the academic year. Employees must substantiate the need for leave to their employers just as they would in any other circumstance, including the name of the summer camp or other program that has closed in connection with COVID-19 and sufficient information to show the child’s enrollment or planned enrollment in such program prior to its closing.
Because many summer camps closed in response to COVID-19 before children began attending—or, in some cases, even enrolling in—them, the DOL admits it is complicated to show whether a child would have actually attended such camp or program had it not closed. If the child was already enrolled in the summer camp or program before the closure was announced, that information is easy to provide. Other “affirmative steps” short of actual enrollment may also be sufficient; for example, if the camp requires an application or a deposit and either were submitted by the parent before the camp’s closure. So, too, if the child attended the program in either of the last two summers and remained eligible to participate this year (for example, he or she did not exceed the maximum age or grade level).
But a parent’s mere interest in a particular camp or summer program the child has not attended previously generally is not enough to make them eligible for FFCRA leave if the camp has since closed for pandemic-related reasons. There may be other circumstances that would qualify, but at a minimum there must be some affirmative indicators that the particular camp or program would have been the child’s place of care this summer. What that actually means in practice remains somewhat fuzzy. Employers are encouraged to keep this in mind as they work through employee requests on these issues.
By Rebecca D. Bullard, rbullard@dsda.com