A few weeks ago, as the school year was winding down, we looked at how the Families First Coronavirus Response Act’s (FFCRA) school closure leave would apply during the summer. At the time, the U.S. Department of Labor’s (DOL) clarification on the topic raised more questions, but, recently, the DOL has issued a field assistance bulletin, which answers some of our questions.
To briefly recap, the FFCRA requires employers with fewer than 500 employees to provide up to twelve weeks of paid leave to an employee who is unable to work or telework due to the need to care for a child whose school or childcare is closed due to the pandemic.
The DOL addressed schools closing for summer in Q&A #93, clarifying that employees are not eligible for FFCRA leave when 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.” We noted that, while the DOL’s FAQ was somewhat helpful, there was still uncertainty in cases where children were not actually enrolled in summer programs because they had already been shut down due to the pandemic.
The DOL, aware of the lingering questions, or perhaps being faithful readers of our HRWatchdog blog, issued a field assistance bulletin to its Wage and Hour enforcement personnel answering some of our questions. Keep in mind, this guidance isn’t specifically for employers, but it gives employers an idea of how the DOL will analyze denial of FFCRA leave in enforcement actions.
The bulletin confirms that employees may be eligible for FFCRA leave even if their children weren’t actually enrolled in a closed summer program. In the bulletin, investigators are directed to consider whether there’s evidence of a “plan” for the children to attend a summer program, or, short of a plan, whether it’s more likely than not the child would have attended a summer camp or program had it not closed due to COVID-19.
The following may be sufficient evidence of a plan:
- “Affirmative steps short of actual enrollment.” (For example, submitting an application or a deposit).
- Prior attendance and current eligibility. (For example, if a child attended the summer program the previous two years and was still eligible to attend this year).
- Recently meeting the age requirement for a summer camp, or recently moving to the area serviced by a summer camp, along with some other indications they intended to enroll.
The bulletin states that a multitude of possible circumstances would allow for FFCRA leave eligibility, so no one-size-fits-all rule is possible. Each case will be analyzed based on the unique circumstances. However, the DOL also made it clear that a parent’s “mere interest” in a camp or program is not enough.
Employers should consult with legal counsel on how much they can ask about employees’ summer plans or intentions when they are considering FFCRA leave requests. 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. Requiring additional documentation may put employers at risk for an interference claim.
Based on how the DOL will analyze and enforce these claims, employers should be cautious and consult with legal counsel before denying FFCRA leave. While it can be problematic to have absent employees, it’s also problematic to respond to a DOL investigation and potentially pay damages. Remember, there’s a tax credit for providing FFCRA leave.