When Does Summer Camp Closure Qualify for FFCRA Leave?

When the Families First Coronavirus Response Act (“FFCRA”) was enacted in March, Congress provided two (2) weeks of Emergency Paid Sick Leave (“EPSL”) and ten (10) weeks of unpaid leave of Emergency FMLA Leave (“E-FMLA”) to employees of most employers with fewer than 500 employees.  A primary concern for Congress at that time was the impact of the closures of schools and places of child care on working parents.  This is why an employee’s inability to work or telework due to his/her need to care for his/her child whose school or place of child care is closed (or whose child care provider is unavailable) due to COVID-19 is the only reason that qualifies for both EPSL and E-FMLA Leave.

Now that the school year is over, many parents who were planning on sending their children to summer camp are largely stuck in the same boat.  Late last week, the U.S. Department of Labor (“DOL”) issued a Field Assistance Bulletin to provide guidance to its Wage and Hour Division (“WHD”) Investigators on when employees can take EPSL and/or E-FMLA because they are unable to work or telework because they are caring for a child whose summer camp or other similar summer place of care is closed.  In the Bulletin, the DOL made clear that the same reasoning and analysis for FFCRA leave requests based upon school or day care closures applies equally to requests based upon summer camp closure. The question then becomes, what does an employee need to do to substantiate the request for such leave? 

In its Bulletin, the DOL stated that an employee who requests EPSL and/or E-FMLA “must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason.”  In addition, the employee must provide the name of the child, the name of the specific summer camp or program that would have been the place of care for the child had it not closed, and a statement that no other suitable person is available to care for the child.  According to the DOL, the requirement to name a specific summer camp or program “may be satisfied if the child . . . applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again.”  The DOL instructed that it is generally not enough that a parent is merely interested in a camp or program.

In light of the foregoing, employers should proceed with caution when considering an employee’s request for EPSL and/or E-FMLA based upon his/her inability to work or telework due to his/her need to care for his/her child whose summer camp or summer program is closed.  For questions about leave under the FFCRA or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on the key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.