DOL Update: Additional FFCRA Guidance for Summer Camp Closures Due to COVID-19 Pandemic

07/02/2020 Written by: Nathanael Alexander, Esq.

Due to the COVID-19 pandemic, countless employees with young children have opted to utilize the time off provisions of the Families First Coronavirus Response Act (FFCRA) in order to provide care to their children in lieu of school and day care center closures nationwide. Now that schools are closed and a vast majority of summer school programs and camps were forced to close, with many still awaiting government clearance to re-open, employees are still struggling to find child care in the summer.Since numerous inquiries have been submitted on this topic, the Department of Labor (DOL) issued Field Bulletin No. 2020-4 on June 26,2020 which provides additional, more specific guidance on when an employee may take leave under the FFCRA. The employer, if subject to FFCRA (generally those under 500 employees and most public entities), is required “to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid.” The guidance states that an employee may take leave under the FFCRA when he or she is unable to work or telework because of related responsibilities that occur due to the closure of their child’s place of care for COVID-19 purposes. The DOL guidance goes on to further define a “place of care” as “a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs.”
Therefore, summer camps qualify as a “place of care” under FFCRA regulations. As such, employees are able to provide evidence of their intent to enroll their child(ren) in a particular summer camp or program, noting that the location would have been their place of care had it not been for the pandemic. Aside from actual enrollment, evidence of intent could also include submission of an application or deposit. If a summer camp or program was not accepting enrollees at the time the FFCRA regulations were issued, proof of participation in a now closed program in previous summers may also suffice to prove intent.
Although there is no “one-size-fits-all” standard applied, it must be “more likely than not” that the child(ren) would have participated based on a preponderance of the evidence at play given the circumstances. The guidance notes that while a parent’s mere interest in enrolling their child(ren) in a summer camp or program is typically not enough, it does provide exceptions in limited instances if a child has just relocated to the area where the intended summer camp or program is offered or for a child who has only recently attained the age necessary to attend.
Employers will want to work with their employees to determine whether evidence of planned participation in a summer camp or program exists, so they do not wrongfully deny an acceptable request under the FFCRA regulations. Employees should also be prepared to submit a statement to their employer illustrating that no other suitable options are available to them for the purposes of child care, providing the specific name of the summer camp or program that would have been the option had it not closed due as a result of COVID-19.

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