While states around the country cautiously proceed to re-open during the coronavirus pandemic, many public and private schools have remained closed. The Families First Coronavirus Response Act (FFCRA) provides paid leave for employees who are unable to work or telework because they need to care for their son or daughter if the child’s school or place of care is closed, or if the child care provider is unavailable, due to COVID-19-related reasons. As the academic school year draws to a close, however, many employees were left wondering whether and how they would remain eligible for these benefits during summer vacation. On June 26, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-4, which provides guidance on when employees would be eligible for FFCRA paid leave based on the closure of summer camps, summer enrichment programs, or other summer programs for COVID-19-related reasons.

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. The WHD’s regulations specifically recognize that summer camps and programs may qualify as “places of care” of employees’ children for the purposes of FFCRA leave, even though they would have not been operating at the time those regulations were issued in April 2020. Additionally, in its FFCRA Questions and Answers, the WHD had stated that an employee may not take paid leave to care for his or her child because school is closed for the summer, but that an employee may be eligible for paid sick or expanded family and medical leave under the FFCRA if his or her child’s care provider during the summer — including a camp or other program in which the employee’s child is enrolled — is closed or unavailable due to a COVID-19 related reason. The WHD did not provide further details as to the latter point, which created some uncertainty for employers handling FFCRA leave requests for employees with school-age children.

The WHD’s recently-issued Field Assistance Bulletin 2020-4 addresses this ambiguity created by the FFCRA Questions and Answers. Employees seeking FFCRA leave based on the closure of summer camps, summer enrichment programs, or other summer programs generally must establish: (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed due to COVID-19, his or her child would have nevertheless attended the camp or program had it not closed. Noting that a “one-size-fits-all rule” is inappropriate, the WHD held that a parent’s mere interest in a camp or program is generally not enough, but that the following may be sufficient to establish eligibility for FFCRA leave:

• If the child was enrolled in the camp or program before the summer camp or other summer program announced closure;
• If the parent took affirmative steps establishing intent to enroll, short of actual enrollment, such as submission of an application or a deposit before the camp or program’s closure;
• If the child attended the camp in prior years and continues to satisfy qualifications for attendance;
  • But the WHD also considers circumstances in which a child could not have attended the camp in prior years but may nevertheless demonstrate eligibility—for example, if the child only recently met the age requirement for a summer camp, if the child recently moved from an area not serviced by the summer camp, or if a child’s parents had not yet made summer arrangements at the outset of the COVID-19 pandemic and delayed doing so due to uncertainty surrounding summer camps’ and programs’ operations; or
• If the child was accepted to a waitlist pending the reopening of the camp or program or the reopening of its registration process.

WHD Administrator Cheryl Stanton stated that the WHD would “continue to provide guidance as new situations and issues arise.” Given the fact-specific nature of employees’ eligibility for FFCRA leave, employers should facilitate open communications with their employees and consult counsel, if necessary, to ensure compliance with this developing guidance.

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If you have any questions regarding leave under the FFCRA, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm. Additionally, Seward & Kissel has established a COVID-19 Resource Center on our web site to access all relevant alerts that we distribute.