Late last week, the U.S. Department of Labor (“DOL”) issued a new Opinion Letter No. 2020-4, clarifying that the inability to send one’s child to a summer camp closed because of COVID-19 may well entitle that employee to leave under the Family First Coronavirus Act (“FFCRA”). This clarification is important because, unlike schools or day cares where attendance is likely regular and consistent, it can be more difficult for an employer to determine if a summer camp is truly a child’s “place of care” (i.e. the physical location where child care is provided while the employee works), so as to entitle an employee to FFCRA.
As a refresher, the FFCRA is a Federal law passed in March 2020 which requires covered employers to provide eligible employees with up to 12 weeks (up to 10 of which may be paid) of expanded family and medical leave if the employee is unable to work or telework in order to care for his/her child whose “place of care” is closed due to COVID-19. Because coronavirus took hold in the middle of the the school year, this expanded family leave entitlement has largely been used to provide paid leave for parents caring for children whose schools or day care centers closed because of coronavirus while children were already attending. But as summer has progressed, some employers have struggled with determining whether or not they have to provide FFCRA leave to employees who claim they have to care for children who cannot attend closed summer camps.
As the DOL makes clear in its new opinion letter, the FFCRA leave entitlement is broader than just closed schools or day cares that were already in session at the time of closure. The FFCRA leave entitlement certainly extends to summer camps that closed in response to COVID-19 before any children actually began to attend or enrolled. The proper question to determine leave eligibility in these circumstances, according to the DOL, is “whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons.”
Mere interest in a summer camp that closed because of COVID is generally not enough to render an employee eligible for FFCRA leave. But, where there is evidence that the employee had a plan for the child to attend summer camp, or short of a plan, if the facts evidence that it is more likely than not that the child would have attended the camp had it not closed due to COVID-19, the employee will likely be entitled to FFCRA leave.
Applying this standard, the DOL has said that an employee will likely be entitled to FFCRA leave as a result of a camp closure if the child was already enrolled at the time the closure is announced (i.e. Pre-Closure Enrollment).
But affirmative steps short of enrollment may also entitle an employee to FFCRA leave to care for a child over the summer.
For example, if an application or deposit was submitted before the camp’s closure (Deposit/Application Submission) this likely establishes that the summer program was the child’s “place of care” so as to entitle the employee to FFCRA leave if he/she has to care for the child and cannot work or telework because of the closure.
Similarly, prior attendance and current eligibility at a summer camp that has closed because of COVID-19 (Prior Attendance/Current Eligibility) is another example of a situation where an employee will be eligible for FFCRA leave. In this example, a child’s attendance at a camp during the summer of 2018 or 2019 offers strong support that the camp would have been the child’s “place of care” for summer 2020 if not for COVID closure, as long as the child continues to satisfy other qualifications for attendance (for example age eligibility). An employee who cannot work or telework, and instead must care for the child because of this closure, is eligible for FFCRA leave.
Being accepted to a waitlist pending the camp reopening (Wait List Status) is another circumstance that will create eligibility for FFCRA for an employee who cannot work because of the closure, assuming the employee meets the other requirements for leave.
The DOL also notes that a summer camp may be “closed” for purposes of FFCRA leave it is partially closed, i.e. operating at reduced capacity such that some children who could have attended cannot, because of COVID.
While these examples are helpful, the DOL also pointed out that there is no one-size fits-all rule. There are a “multitude of possible circumstances” where an employee will be able to establish a plan to send his/her child to summer camp or, in the absence of a specific plan at the time of closure, that the child would nevertheless have attended the summer camp had it not closed, so as to entitle the employee to FFCRA leave. While it remains true that an employee cannot take FFCRA leave based on a summer camp closure that the child has never attended, if there is some indication that the child would have attended the camp if not for the COVID closure, then the employee may well be entitled to FFCRA leave.
Employers are well advised to understand all relevant facts before making a decision on an employee’s request for FFCRA leave. To that end, an employee who requests FFCRA leave must provide its employer, either orally or in writing, an explanation of the reason for the leave and a statement that the employee is unable to work. Just as when they request FFCRA for school or day care closures, employees who make a FFCRA leave request related to a camp closure must provide the name of the child, the name of the summer camp, and a statement that no suitable person is available to care for the child. Even with this information, in circumstances where the right to leave may be a close call, Employers may also wish seek advice of legal counsel to help avoid potential a claim that leave has been wrongfully denied under the FFCRA. Such claims are only likely to increase as coronavirus continues to plague the United States and businesses struggle with how to deal with getting back to business during this unprecedented time.