On June 26, 2020, the United States Department of Labor – Wage and Hour Division (USDOL) issued guidance for Wage and Hour Division investigators "regarding when an employee may take leave under the Family First Coronavirus Response Act (FFRCA) to care for his or her child based on the closure of a summer camp, summer enrichment program or other summer program for COVID-19 related reasons."
FFRCA provides eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave for certain COVID-19-related reasons (see our previous Alert for more on FFRCA leave). Included among those reasons is leave in the circumstances in which an employee’s child’s "place of care" is closed due to COVID-19 and the employee is unable to work due to childcare responsibilities. An employee’s child’s summer camp, summer enrichment program or other summer program (Summer Program) may be a "place of care" under FFRCA.
An employee requesting FFRCA leave for Summer Program closures must provide an employer with written or oral information including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason, the name of the child, the name of the Summer Program and a statement that no other suitable person is available to care for the child.
In determining whether a Summer Program would be the "place of care" for an employee’s child, a Wage and Hour Division investigator may consider whether the child applied to or was enrolled in the Summer Program before it closed or whether the child attended the Summer Program in prior summers and was eligible to attend again. The USDOL acknowledged that the "multitude of possible circumstances" under which an employee could establish the existence of a plan for his or her child to attend a Summer Program "prevents a one-size-fits-all rule here," but, "a parent’s mere interest in a camp or program is generally not enough." Investigators are directed to consider other factors such as whether the child had recently moved from an area not serviced by a summer camp or whether the employee had delayed making summer plans because of uncertainty surrounding the camp’s operations during the pandemic. Whether the Summer Program would have been the "place of care" for the employee’s child had it not closed must be established by a preponderance of evidence.
If you have any questions regarding this Alert, please feel free to reach out to anyone on our Employment, Labor and Human Resources team. Additionally, please visit and bookmark our firm’s Coronavirus (COVID-19) Business Resource Center, which is continuously updated with useful materials and resources related to COVID-19. This tool has been made available to ensure that our clients and the broader business community stay informed on key issues that may impact their operations and to navigate the related business and legal issues during these challenging times.