On June 26, 2020, the U.S. Department of Labor’s Wage and Hour Division (DOL WHD) issued Field Assistance Bulletin (FAB) 2020-4. Aimed at DOL WHD investigators, the FAB provides guidance explaining how the Family First Coronavirus Response Act (FFCRA) applies to employees taking leave to care for their child whose summer camp, summer enrichment, or other similar summer program is closed due to COVID-19 related reasons.
FFCRA History and Background
Under the FFCRA, covered employers must allow eligible employees to take up to two weeks of paid sick leave and up to 12 weeks of family leave (which is paid after the first 10 days) for certain reasons due to COVID-19, including if the employee is unable to work or telework because their child’s place of care is closed. For a refresher on the specifics of the FFCRA, refer to previous FINEOS blog posts explaining the initial bill, subsequent revisions, and regulations.
“Place of Care” Determination
The FAB, citing FFCRA regulations, reiterates that a “place of care” is “a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs.” The FAB also clarifies that a summer camp or similar program may be considered “closed” for the purposes of FFCRA leave even if it is only partially closed or operating at reduced capacity due to COVID-19, and as a result, some children who would have attended the camp or program can no longer do so.
Because the COVID-19 pandemic began during the second half of the school year, many children were already enrolled in school or a daycare program when those schools and programs closed. Therefore, in most of those cases, it would have been easy to establish that a school or daycare center was the child’s place of care and that its closure was the reason an employee needed to take leave.
However, many summer camps and similar summer programs closed due to COVID-19 before children had enrolled, making it more difficult to ascertain whether a child would have attended the program if it had not closed. The FAB clarifies how WHD investigators can determine whether a summer camp or similar summer program qualifies as a particular child’s place of care under the FFCRA.
When evaluating whether an employee was improperly denied leave under the FFCRA, DOL WHD investigators will review employee-provided information and consider whether there’s enough evidence to establish that, “more likely than not,” the child would have attended a particular summer camp or program had it not closed due to COVID-19.
Like employees who request FFCRA leave for other reasons, those requesting leave due to the closure of their child’s summer camp or other similar summer program must provide the employer with information supporting their need for leave. Information can be supplied orally or in writing and should include:
- An explanation of the reason for leave and a statement that the employee is unable to work for that reason
- The name of the child and the name of the school, camp, or other place of care
- Statement that no other suitable person is available to care for the child. § 826.100(e)
Employers should be aware that there is no “one size fits all rule” when determining whether a particular summer camp or program qualifies as a child’s place of care and should follow the guidelines provided to DOL WHD investigators. Because it must only be established that a child “more likely than not” would have attended the camp or a program had it not closed due to COVID-19, the employee doesn’t necessarily need to provide verified enrollment. The FAB explains that other “affirmative steps short of actual enrollment” may be enough to establish a child’s planned place of care.
Therefore, the requirement to name the summer camp or other similar summer program the child would have attended may be satisfied if:
- The child applied to or was enrolled in the program before it closed, even if they never attended
- The child attended the camp or program in previous summers and is eligible to attend again
- A deposit was paid to hold the child’s place in a camp or other summer program
- There is other indication that, more likely than not, the child would have attended the camp or program if not for COVID-19-related closure
As you can see, making a “place of care” determination is not cut and dried. Employers should ensure they are considering all applicable evidence when evaluating an employee’s FFCRA leave request due to a COVID-19 related closure of summer camp or other similar program.
The COVID-19 pandemic has brought with it an overwhelming amount of information for employers to consider within the leave of absence landscape. To assist with this challenge, FINEOS continues to monitor federal, state, and local governments’ response to the COVID-19 pandemic and will provide analyses and updates as more guidance is made available.