As Virginia businesses are beginning to reopen for work under Governor Ralph Northam’s Order easing many COVID-19-related business restrictions, most public and private school systems in the Commonwealth are beginning to wind down the school year and close for summer break. The dichotomy of openings and closings raises a key question for many workers with school-age children (and their employers): Am I able to continue to qualify for paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and emergency family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA)?

The U.S. Department of Labor (DOL) weighed in on the question last week, clarifying the answer in certain respects but leaving it murky in others, in the latest update to its Families First Coronavirus Response Act (FFCRA) guidance to frequently asked questions.

First, a quick refresher on the FFCRA’s paid sick leave and partially paid emergency family and medical leave benefits available to employees due to the COVID-19 pandemic. The EFMLEA, which remains in effect through December 31, 2020, provides full- and part-time employees who have been employed with a covered employer for thirty calendar days or more, with up to 12 weeks of leave for a “qualifying need,” which is limited to those situations where an employee is unable to work or telework in order to care for a child of the employee whose school or care center has been closed or is otherwise unavailable due to coronavirus. The first 10 days for which an employee takes EFMLEA leave may be unpaid leave. All extended FMLA leave after the first 10 days becomes paid leave, which is capped at $200 per day, with a maximum paid leave benefit of $10,000.

The EPSLA, also only temporarily in effect through December 31, 2020, provides all full- and part-time employees with immediate eligibility for paid sick leave of up to 80 hours to care for the employee’s child, if the child’s school has been closed or the child’s day care is closed or otherwise unavailable due to coronavirus. Like EFMLEA leave, the paid sick leave benefit is limited to those circumstances in which the employee is the only individual available to care for the child and is not able to work or telework as a result. Paid sick leave is not applicable “if another suitable individual – such as a co-parent, co-guardian or the usual childcare provider – is available to provide care for the employee’s child,” according to the DOL. The rate of pay for EPSLA sick leave used by an employee to care for a family member or child when school or daycare is closed for COVID-19-related reasons, is capped at $200 per day and $2,000 in total.

What About No School or Summer Activities and Paid Leave?

The DOL jumped into the discussion late last week to address the question of whether employees continue to be eligible for paid leave benefits once schools close for the summer and alternative activities for kids, like summer camps, may not be available due to the COVID-19 pandemic (See DOL FAQ #93.) The DOL was unambiguous in stating that EPSLA and EFMLEA leave is not available to care for an employee’s children because their school is closed for summer vacation. The DOL views summer closing of schools as pre-planned occurrences that would have happened with or without the COVID-19 pandemic. Because it is not COVID-19 related, school closure during the summer is not a qualifying event for paid sick leave and emergency family and medical leave.

What About Summer Youth Camp Closures or the Unavailability of Other Summer Youth Activities that are Due to COVID-19?

The DOL was not quite as definitive in its answer:

[T]he employee may be able to take leave if his or her child’s care provider during the summer – a camp or other program in which the employee’s child is enrolled – is closed or unavailable for a COVID-19 related reason.” As discussed above, the DOL’s answer also assumes that the employee is the only individual available to care for the child.

The DOL’s response for summer activities leaves open some room for academic debate. To wit: Does it really matter whether the employee’s child had already actually enrolled in the summer camp or other activity before it was closed for COVID-19 reasons? Yes, would seem to be the logical reading of the DOL’s answer. But should actual enrollment really be a necessary requirement to qualify for FFCRA leave? Is that requirement consistent with Congress’s intent in passing the FFCRA, which was to make paid leave readily available to employees during the COVID-19 pandemic? Alternatively, should it be sufficient in order to qualify for paid sick leave and emergency family and medical leave for an employee with kids merely to show that the summer camp or activity had been utilized by the employee in years past? Or that such summer activities had already been contemplated by the employee before the COVID-19 pandemic hit but are no longer available now due to the spread of COVID-19. Hopefully the DOL will provide a clarifying update soon.

Employer Takeaway

Until then, what should employers take away from the DOL’s latest guidance? If one of the summer camps or other summer activity hypotheticals above comes to pass, and your employee is the only individual available to care for his child, consider providing the employee with available EPSLA and EFMLEA leave, given the DOL’s lack of clarity. From a financial risk standpoint, it may turn out to be a better decision. Potential penalties and damages for employers who violate the EPSLA by withholding paid sick leave to which an employee is entitled, are those generally available for violations of the Fair Labor Standards Act, including an amount equal to the federal minimum wage for each hour of paid leave denied, liquidated damages, costs and reasonable attorneys’ fees. Violations of the EFMLEA can expose employers to the same enforcement provisions as with a violation of the Family and Medical Leave Act, with the condition that the FFCRA does not permit an employee to bring a private action against an employer not otherwise subject to the FMLA, i.e., the employer has had fewer than 50 or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year.

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.