DOL Issues New Bulletins Addressing the Effect of Summer Camp and School Closures on the Families First Coronavirus Response Act
Contact Clara (C.B.) Burns, Charles C. High, Jr., Gilbert L. Sanchez and Michael D. McQueen -
June 29, 2020
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The Department of Labor (“DOL”) issued two new bulletins on June 26, 2020, clarifying issues related to the pandemic’s effect on employees and the workplace, given that school and summer activity schedules are greatly altered as the country continues to reopen in the wake of COVID-19. The bulletins addressed two concerns regarding the Families First Coronavirus Response Act (“FFCRA”). The FFCRA requires covered employers (employers with 500 or less employees) to 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. FFCRA leave may be taken if the 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. A “place of care” is a physical location in which care is provided for the employee’s child while the employee works. Summer camps and summer enrichment programs fall within this definition.
First, the DOL clarified that the expectation that employees take FFCRA leave based on planned summer enrollment is no different from closing of other places of care, such as a day care center. An employee generally cannot take FFCRA leave to care for his or her child based on the closing of a day care center that the child has never attended, unless there were some indication that the child would have attended had the day care center not closed in response to COVID-19. The same analysis applies to whether the child would have attended a specific summer camp or program but for its partial closure due to COVID-19. A summer camp or program may also be closed for purposes of FFCRA leave if it is partially closed for reasons related to COVID-19, such as operating at a reduced capacity in which some children who would have attended that camp or program this summer may no longer do so.
An employee who requests FFCRA leave 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. Additionally, in the case of leave to care for the employee’s child whose school or place of care is closed, the employee must provide the name of the child, the name of the school or place of care, and a statement that no other suitable person is available to care for the child.
Similarly, an employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. This requirement to name a specific summer camp or program may be satisfied if the child, for example, 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.
Second, the DOL provided guidance regarding when schools that have physically closed in response to the COVID-19 pandemic are nonetheless considered to be in session for the purposes of the child labor laws applicable to the employment of children under the age of 16 in agricultural and nonagricultural employment. Generally, school is in session if the local public school district requires its students to participate in virtual or distance learning, even if schools in the district are physically closed. In contrast, a physically closed school generally will not be considered to be in session if the district does not require virtual or distance learning.
If you have any questions about the DOL’s updated guidance and bulletins, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
