Leave Under the Families 1st Coronavirus Response Act Due to Closure of Summer Camps, Summer Enrichment Programs or Other Summer Programs

On June 26, 2020, the United States Department of Labor, Wage and Hour Division, issued a Field Assistance Bulletin (FAB) regarding the circumstances that closure of summer camps, summer enrichment programs, or other summer programs qualifies an employee for leave under the Families First Coronavirus Response Act (FFCRA). A FAB provides guidance to the Wage and Hour Division investigators and staff on enforcement positions and clarification of policies or changes in policy. While not law, employers are still encouraged to follow the FAB as it will be used by the investigators to determine if there has been a violation of the FFCRA.

The FFCRA requires employers with less than 500 employees to provide eligible employees with up to 12 weeks of expanded family and medical leave, of which up to 10 weeks may be paid, to take care of his or her child whose place of care is closed due to COVID-19 related reasons. A “place of care” is a physical location in which care is provided to the employee’s child while the employee works, including summer camps and summer enrichment programs. While a parent’s mere interest in a camp or program is not sufficient to qualify them for leave, an employee is entitled to the leave if it was more likely than not that the employee’s child would have attended the camp or program had it not closed due to COVID-19, and the employee is unable to work (or telework) as a result.

An employee may establish that his/her child would more likely than not have attended a particular summer program through proof of enrollment in the summer program, completion of an application for the summer program, or submission of a deposit. Employees also may show their child’s prior attendance at the camp and current eligibility to attend this summer. An employee whose child only recently met the eligibility requirements for a particular camp or recently moved into the area serviced by the summer program, however, may not be able to make such a showing. In those circumstances, employers should consider any “indicators” that a particular camp or program would have been the child’s place of care for the summer.

In order to determine whether an employee is eligible for leave due to the closure of a summer camp, enrichment program, or other summer program, employers may require the following information from employees seeking leave:

• 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 name of the child, the name of the school or place of care, and a statement that no other suitable person is available to care for the child.
• Information that the employee’s child more likely than not would have attended the stated school or place of care.

An employee may also be eligible for leave if the summer camp or program is partially closed and operating at reduced capacity, such that some children that would have attended may no longer do so.