The federal Families First Coronavirus Response Act (“FFCRA”) provides emergency family leave and sick leave for employees who are unable to work or telework while caring for children whose school or place of care is closed or childcare provider is unavailable due to COVID-19. Now that the school year is over, the question arises: May employees take FFCRA leave if their children’s summer programs and summer camps are closed?
In short, the U.S. Department of Labor (“DOL”), in its latest guidance, answers “yes,” a “place of care” under FFCRA includes summer camps and summer programs, and employees may take FFCRA leave if their children’s summer camp or program is closed due to COVID-19. An employee seeking FFCRA leave for this reason must provide to their employer their child’s name, the name of their child’s summer program or camp that would have been the child’s place of care, and a statement providing that no other suitable person is available to care for their child.
There are some limitations, however. An employee cannot use a closed summer camp as a reason for leave if there is a lack of evidence that the employee had planned for their child to attend that camp or program. Instead, in the event of a dispute over leave, the employee must be able to show that the summer camp or program would have been the child’s place of care, had it not closed. So, for example, the employee may show that the child was enrolled in the camp before it closed. The DOL recognizes, however, that many summer camps and programs likely closed this past spring, before any child enrolled. Therefore, the DOL will consider other evidence of an employee’s intent to send their child to a particular camp or program, such as the submission of an application and/or a deposit, or even the fact that the child attended the camp in previous summers and was eligible to attend again.
For additional information on the FFCRA leave and its interaction with the closure of children’s summer programs or camps, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com.
