With the arrival of summer the U.S. Department of Labor (“DOL”) issued some additional guidance last week to clarify when an employee may take leave under the Family First Coronavirus Response Act (“FFCRA”) to care for the employee’s child based on the closure of a summer camp, summer enrichment program, or other summer program for COVID-19-related reasons. The new guidance adds some gloss to the partial answer previously provided by the DOL earlier in the month, when it addressed the availability of FFCRA leave in the context of pending school summer closures, which you can read about here.

Unlike schools, however, most of which were already in session when the COVID-19 pandemic hit, many summer camps and programs closed in response to COVID-19 before any children began to attend and, in some cases, before they even began to enroll. Thus, determining whether a child would have attended a summer camp or program, but for a COVID-19 closure, could be much more daunting to show. The DOL provided a road map for parents who find themselves in this tough spot and for employers who find themselves on the receiving end of this kind of FFCRA leave request.

Under the FFCRA, small and mid-size employers must 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, if an employee is unable to work or telework due to a need to care for his or her child whose “place of care” is closed due to COVID-19 related reasons. Summer camps and programs fit the definition of a “place of care,” according to the DOL.

To qualify for FFCRA leave, an employee who requests such leave based on the closure of his child’s summer camp or program must provide his employer with the name of that summer camp or program and a statement that it would have been the child’s “place of care” if it had not closed due to COVID-19. According to the DOL, the employee is able to satisfy that requirement, if the employee: (1) had already enrolled the child in the summer camp or program before it closed, or (2) had a child who had attended the camp or program in the past and was eligible to attend again this summer.

Even if the employee had not enrolled his child in a summer camp or activity before COVID-19 closure, it still may be possible for the employee to qualify for FFCRA leave. According to the DOL, there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program would have taken place, if the camp or activity had not already closed first for COVID-19 reasons. Considerations include “whether there is evidence of a plan for the child to attend the camp or program, or short of a ‘plan,’ whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19.” Among the factors to be considered by the DOL’s investigators reviewing whether an employer has improperly denied an employee FFCRA leave are the following:

• Current enrollment for or recent prior attendance at a summer camp or activity;
• Submission of an application for the summer camp or activity before its closure;
• Payment of a deposit toward the cost of the summer camp or activity before closure; and
• Prior attendance and current eligibility for a summer camp or activity.

The DOL acknowledged that there are a “multitude of possible circumstances” that might go toward showing that it was more likely than not that the employee had a plan for his child to attend a summer camp or activity, which makes it impossible to create a bright-line or “one-size-fits-all rule.” Other circumstances tending to show a “plan” include “being accepted to a waitlist pending the reopening of the camp or program or the reopening of its registration process.”

What should employers take away from the DOL’s latest FFCRA guidance? If one of the summer camp or activity hypotheticals above comes to pass, and your employee is the only individual available to care for his child, consider providing the employee with FFCRA leave, unless there is a straightforward evidentiary case to be made that the employee just did not have a “plan” to enroll his child in a summer camp or program. From a financial risk standpoint, it may turn out to be a better decision. Potential penalties and damages assessed against employers who violate the FFCRA’s paid leave provisions can be significant, including reimbursement of reasonable attorneys’ fees.

If you have questions about, or need assistance with, the new paid sick leave or emergency family and medical leave laws, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.