Expanded FMLA Leave Applies To Summer Programs
On June 26, 2020 the Department of Labor issued guidance to its investigators regarding when an employee may take leave under the Family First Coronavirus Response Act (FFCRA) to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons. Recall that the FFCRA requires covered employers to provide eligible employees with up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid (collectively “FFCRA leave”). 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.
In the new guidance, a “place of care” is expanded to include summer camps and summer enrichment programs. An employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason. The employee should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed. This requirement to name a specific summer camp or program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again. There may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program.
A summer camp or program may also be “closed” for the purposes of FFCRA leave if it is partially closed for reasons related to COVID-19, i.e., operating at a reduced capacity, such that some children that would have attended that camp or program this summer may no longer do so. In such instances, the same analysis as to whether the child would have attended that specific summer camp or program but for its partial closure due to COVID-19 is applicable.
The new guidance offers a myriad of factors and a “one-size-fits-all” rule is specifically rejected due to the multitude of possible circumstances under which an employee may establish that he or she is eligible for the FFCRA leave due to a summer camp or program being closed due to COVID-19. If you have any questions or need to obtain more direction in making this determination, please contact your attorney at RBS.