School is out and summer is here, leaving many employees to consider something they would have never even heard about just a few short months ago: a FFCRA leave (Families First Coronavirus Response Act). As employers begin to reopen offices and recall employees back to work, many parents may be challenged to find childcare options because many summer camps and childcare programs have been cancelled due to COVID-19.
Employers must recognize that under FFCRA some employees may use paid leave to care for their children whose summer school or place of care has been closed due to COVID-19.
The FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for qualifying reasons, including when an employee is unable to work or telework because they are caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19. A common misconception is that what constitutes a school or childcare is limited. To the contrary, the Department of Labor (DOL) defines a school or childcare broadly.
According to the Department of Labor’s updated Frequently Asked Questions, a summer camp qualifies as a “place of care.” A “place of care” is a physical location in which care is provided for your child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs and respite care programs.
Summer Camp Cancellation Can Trigger FFCRA Leave
Question #93 of the DOL’s FAQ clarifies that cancellation of summer camps or other summer programs may justify FFCRA leave if such cancellations and resulting child-care responsibilities render the employee unable to work.
Q: I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?
A: No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or childcare provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.
Nothing about COVID-19 has been easy and trying to relaunch a business is no exception. Getting employees back to work raises a number of challenging employment law issues. Childcare dilemmas are going to be one such challenge. Employers must understand that employees who have been teleworking despite having their child or children at home may still be eligible for FFCRA leave if summer camp options fall through.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.