As the school year ends with a whimper, many parents are preparing for a summer with their kids at home at the same time businesses try to reopen and bring their employees back to work. Summer camps, day care and other summer activities have largely been canceled due to the pandemic. Employers are going to get questions about scheduling accommodations, including whether employees can take child care-related paid leave provided by the Families First Coronavirus Response Act (FFCRA) once schools are officially closed for summer break.
Do employees remain eligible for child-care related FFCRA benefits when the school year ends? It depends on the circumstances. The U.S. Department of Labor (DOL) recently addressed this issue in its FFCRA Q&A page, but some uncertainty remains.
The FFCRA requires employers with fewer than 500 employees to provide paid leave to employees for a variety of reasons, including when the employee is unable to work or telework because their child’s school or place of care is closed or their child care provider is unavailable due to COVID-19 reasons.
Many employees may have already taken FFCRA leave for school closures. Early on, the DOL clarified that even when schools transitioned to distance learning, they were still “closed” for FFCRA purposes, and employees remained eligible for leave. Now that schools are closed for the summer, do employees remain eligible to take this leave?
According to the DOL’s recently posted Q&A #93, employees are not eligible for FFCRA leave when the school closes for the summer or for any other reason not related to COVID-19. However, an “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.” This is consistent with the FFCRA regulations, which includes summer camps and other activities in the definition of place of care.
Challenging questions now arise. Does the employee need to establish that the child was actually enrolled in a summer program before they can take leave? What if the employee intended to enroll their child but did not get a chance to before the pandemic shut everything down? Perhaps the summer program never even opened their registration, making it impossible to register in the first place.
The DOL’s guidance doesn’t specifically address this issue, but employers should be cautious and consult with legal counsel before going down that road. FFCRA regulations limit the information and documentation employers may require from employees requesting FFCRA leave. For school/day care closure leave, employers may require the employee provide the name of the child being cared for, and the name of the school, place of care or child care provider that has closed or become unavailable, as well as state that no other suitable person will be caring for the child during the leave. For the time being, employers may not require additional substantiating documentation such as enrollment records. Doing so may put employers at risk for an interference claim.
Based on the FFRCA regulations and the DOL’s guidance, employers should expect new or renewed requests for FFCRA leave due to the closure of summer activities. Remember that intermittent leave is also an option for school/day care closures. It may become increasingly prevalent as working parents juggle staggered work schedules during the state’s phased reopening.
The DOL is continuing to update their FFCRA guidance and may provide more insight as more schools close for the summer. Employers should continue to consult with their legal counsel on their FFCRA obligations.