The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.
In April 2020, the Families First Coronavirus Response Act (“FFCRA”) obligated many employers to provide paid leave to employees who could not work because, among other reasons, their children’s school or “place of care” was closed, or their child care provider was unavailable, due to COVID-19 related reasons. At that time, it was easy to determine whether an employee was eligible for this leave.
Shortly after the FFCRA went into effect, the Department of Labor’s Wage and Hour Division (WHD) opined that a closed summer camp or program would be considered a “place of care” that entitled the parent to this paid leave if the child was enrolled in the summer camp or program when the camp or other program announced closure. But this guidance did not address whether leave was available to parents unable to enroll their child because the camp or program closed before its usual enrollment period.
As we enter the summer, this lack of clarity left employers uncertain when to provide leave. The WHD has now provided some guidance for determining whether an intended summer camp or program is a “place of care” that entitles a parent to paid FFCRA leave.
The Field Assistance Bulletin (“FAB”), issued June 26, 2020, advises that camps and programs are “places of care” for FFCRA leave purposes if an employee can demonstrate that “it is more likely than not” that his or her child had planned to attend the summer program that closed. More specifically, there needs to be some indication that the child would have attended had the camp or program not closed due to COVID-19. The WHD includes several non-exclusive examples of such indices, including: the child’s actual enrollment, placement on a waitlist, attending that program in the prior year coupled with continued eligibility for attendance, submission of an application, or the payment of a deposit. In contrast, mere “interest” in the program would not entitle the employee to FFCRA leave. The FAB acknowledged that there was no “one size fits all” approach to determining whether leave was appropriate.
While FABs do not carry the force of binding law, they provide guidance for employers to use to navigate this complicated situation. Employers should consider employee information provided substantiating the employee’s “plan” or “other indication” that the employee intended to send his or her child to the closed camp or program before approving or denying the leave, and should document the basis for their determination in the event of a challenge.
Employers should also be mindful that an employee seeking leave to care for his or her child must take other steps including (1) affirming that due to the lack of program or care, the employee cannot work or telework, and (2) that there is no other “suitable” person to attend to the child’s needs. And, lastly, employees are only eligible for 12 weeks of FFCRA childcare leave—employers should confirm that the employee did not use up their leave entitlement when schools were closed.
Employers may not be able to obtain a tax credit for monies paid to employees on FFCRA leave taken for non-qualifying reasons, which is why documenting the decision and retaining supporting information is key. Conversely, improperly refusing FFCRA leave could expose employers to claims for failure to provide required leave. Because this area can be confusing, employers administering FFCRA leave to their employees would be prudent to consult with employment counsel to prepare leave programs to avoid or mitigate these or other legal leave-related risks.