More on FFCRA leave for kids' summer closings

The DOL's Wage and Hour Division tells us how it will look at these issues.

One of the hot (get it?) issues with the Families First Coronavirus Response Act is how it will apply to employees' child care needs after the kids' school would have been closed for the summer anyway.

The quick answer is that there would be no more FFCRA leave based on the school closing, but there could be FFCRA leave for the parents if their kids' summer programs are unavailable for reasons related to coronavirus.

The U.S. Department of Labor, Wage and Hour Division, recently issued a Field Assistance Bulletin discussing the "summer program care" issue in more depth. The Bulletin discusses what investigators from the Division should consider during an FFCRA enforcement action. Unfortunately, employers do not have the authority to ask the questions that the government investigators may ask. However, it is still helpful to employers to know how the Division is approaching this issue.

According to the Bulletin, the closing of a summer day camp or other program would be considered the same as the closing of a day care center or other "place of care" for a preschool child. If the closing or lack of available summer care was due to coronavirus, one of the parents would be entitled to FFCRA leave to care for the children, assuming the other requirements of the law were satisfied.

The Bulletin points out that a "closing" could include reduced enrollment (for example, to allow for social distancing), which prevents the child from being admitted.

Definitively establishing which school or year-round preschool a child would have been enrolled in is usually a clear-cut matter. Enrollment in summer programs, though, is often more wishy-washy. And that's the main subject of the Bulletin.

"The question is whether a specific summer camp or program would have been the place of care of an employee's child had it not closed for COVID-19-related reasons, which must be established by a preponderance of the evidence . . ."                         U.S. Department of Labor, Wage and Hour Division, Field Assistance Bulletin 2020-4 (June 26, 2020)

What would the Wage and Hour Division look at in determining whether the parents really intended to send their kids to a particular summer program? Generally, there must be

  • Evidence of a "plan" to enroll the child in the program, OR
  • Anything else showing that "more likely than not" the child would have been enrolled in a particular program but for COVID-19.

Mere "interest" in a program would not be enough. Evidence that the Division would consider in determining that the child would have been enrolled in a given program could include any one of the following:

  • The parents submitted an application for enrollment or paid a deposit.
  • The child attended the program in the past and was eligible to return in 2020 (for example, the child had not aged out of the program).
  • In the case of a child who just became old enough to enter a program in 2020, or who had aged out of his or her regular program and had to enter a different program in 2020, or who had recently moved to the area, the child was on a program's wait list.

The Bulletin cautions that there is no "one-size-fits-all" rule, and that other evidence might be relevant.

Again, employers beware: This is what the government will consider during FFCRA enforcement action. You, the employer, are not authorized to probe into any of this when your employee requests leave. The FFCRA regulations say that the employer may request only the following:

  • The name of the employee's son or daughter.
  • The name of the school, place of care, or child care provider that is no longer available.
  • A representation that no suitable person is available to care for the son or daughter during the period for which FFCRA leave is sought.
  • Any information required by the Internal Revenue Service to be able to issue a tax credit to the employer (which is currently no more than the above, plus an explanation as to why a child who is 14 years old or older needs a caregiver during daylight hours).

(The FFCRA applies to private sector employers with fewer than 500 employees in the United States or its territories and possessions. It also applies to virtually all public sector employers, regardless of size. The law will expire on December 31.)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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