The summer season is normally a time the children are off to summer camps, enrichment programs, or summer school sessions.  This year, however, employees are finding themselves without available childcare in the wake of continued widespread COVID-19-related closures.  As state and local governments vacillate between easing and increasing restrictions, normal summer programs may be unavailable, or if open, may be operating at significantly reduced capacities.

As we previously reported, the Families First Coronavirus Response Act (“FFCRA”), enacted on April 1, 2020, requires covered employers to provide eligible employees with up to twelve weeks of childcare leave when the employee is unable to work or telework due to a need to care for a child whose place of care is closed due to COVID-19-related reasons.  Now that the school year has concluded, the Department of Labor (“DOL”) has issued a Field Assistance Bulletin, found here, clarifying how the FFCRA applies over the summer season.

Summer Schools, Camps & Enrichment Programs Are “Places of Care” Under FFCRA

Summer schools, camps, and enrichment programs all qualify as a “place of care” for purposes of FFCRA, such that employees are entitled to paid leave if those programs are closed due to COVID-19.  Further, although many camps and summer programs may have reopened, they may still be considered “closed” for purposes of FFCRA if they are operating at a reduced capacity, such that some children that would have ordinarily have attended that camp or program might not be able to do so.

How an Employee May Qualify for Childcare Leave Over the Summer

In order to request FFCRA leave for a summer childcare need, the DOL requires additional information, given the differences between the circumstances of a child’s normal school that closed during the Spring semester due to COVID-19, and a summer program that closed due to COVID-19 before the child likely had even enrolled in the first instance.  During the normal school year, in order to request FFCRA child care leave an employee would need to submit: (1) an explanation of the need for leave and a statement that the employee is unable to work because of that need; (2) the name of the child; (3) the name of the school or place of care; and (4) a statement that no other person is available to care for the child.  However, now, employees seeking FFCRA leave for summer program closures must additionally show that the child applied to or was enrolled in a program before it was closed due to COVID-19, or that the child attended a camp or program in prior summers and was eligible to attend again, or other similar circumstances to show an actual or planned enrollment in a camp or program.

Takeaways

Covered employers should update their COVID-19 workplace policies to include the applicability of FFCRA leave to summer childcare needs.  Further, when dealing with an employee request to use FFCRA leave due to the closure of a child’s summer school, camp, or enrichment program, covered employers should analyze whether it is more likely than not that the employee would have sent his or her child to a summer program but for its closure due to COVID-19.  Employers should be flexible, given that a multitude of factors could demonstrate an employee’s intent to send his or her child, even short of actual enrollment.  The DOL cautioned that no one-size-fits-all rule applies to this scenario, and likewise, employers should take caution to review all of the facts and circumstances surrounding an employee’s request, engaging with their counsel if necessary.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.