Compliance News | July 10, 2020

Summer Camp Closed? Guidance Helps Parents Take FFCRA Leave

The DOL has published guidance on when an employee may take leave under the Families First Coronavirus Response Act (FFCRA) to care for their child because a summer camp, summer enrichment program or other summer program has closed for COVID-19-related reasons.

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FFCRA leave

The FFCRA requires certain employers to provide eligible employees with up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave of which up to 10 weeks may be paid. The expanded family leave applies if employees are unable to work (or telework) during the COVID-19 public health emergency because they need to care for a son or daughter under age 18 whose elementary or secondary school or “place of care” has closed or whose child care provider is unavailable due to a public health emergency.

How the FFCRA leave rules apply in relation to summer camps and programs raised questions. Unlike schools and day care centers, many summer camps and programs closed in response to COVID-19 before any children enrolled or began to attend.

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The guidance on leave related to summer programs

Under existing guidance, a closed summer camp or program could be considered the “place of care” for an employee’s child if the child was enrolled before the camp or program closure. A recently issued DOL Field Assistance Bulletin clarifies that a specific summer camp or program may be treated as the “place of care” for purposes of FFCRA leave if it would have been the “place of care” if it had not closed for COVID-19-related reasons. This applies to summer camps and programs even though they would have not been operating when initial regulations were issued in April 2020.

The DOL clarifies that while a parent’s interest in a camp or program alone is generally not sufficient evidence that a camp or program would be treated as “the place of care,” supporting evidence includes:

  • Evidence of a “plan” for the child to attend the camp or program, such as submission of an application before the closure or payment of a deposit
  • In the absence of such a plan, evidence that it is more likely than not that the child would have attended the camp or program had it not closed due to COVID-19, which may include prior attendance and current eligibility or acceptance on a waitlist pending the reopening

DOL investigators would consider this evidence in evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program.

The DOL notes a summer camp or program may be considered “closed” for the purposes of FFCRA leave even if it is only partially closed for reasons related to COVID-19, such as operating at a reduced capacity. In such instances, the same analysis as to whether the child would have attended that specific summer camp or program but for its partial closure due to COVID-19 is applicable.

What employees must do to request FFCRA leave

As with other FFCRA leave requests, employees requesting FFCRA leave due to a closed camp or summer program must provide the employer information in support of the need for leave either verbally or in writing. This would include an explanation of the reason for leave, a statement that the employee is unable to work because of that reason, the name of the child, the name of the camp or summer program and a statement that no other suitable person is available to care for the child.

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This page is for informational purposes only and does not constitute legal, tax or investment advice. You are encouraged to discuss the issues raised here with your legal, tax and other advisors before determining how the issues apply to your specific situations.

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