The Department of Labor has updated its guidance addressing the availability of employee leave under the Families First Coronavirus Response Act (FFCRA). The DOL clarified that a parent-employee is entitled to FFCRA leave if the parent-employee is unable to work or telework due to a need to care for his or her child whose place of care, which now includes summer camps and summer enrichment programs, is closed due to COVID-19 related reasons.

The FFCRA provides employees working for private employers with fewer than 500 employees and all public employers with up to 80 hours of paid sick leave which may be taken for qualifying reasons, including to care for a child whose school or place of childcare has closed due to COVID-19. The Act also permits employees to take family and medical leave (FMLA) for this reason as well. These new entitlements created by the FFCRA are set to expire on December 31, 2020.

The DOL clarified that summer camps may be considered the place of care whose closure due to COVID-19 related reasons may entitle an employee to take sick or FMLA leave. The main question determining if leave is available is whether the specific summer camp or program would have likely been the place of care for the employee’s child had the program not been closed for COVID-19 related reasons.

Typically, the employee will need to show that their child was already enrolled in a camp that subsequently closed. However, affirmative steps short of actual enrollment may also establish the summer camp as the child’s place of care for purposes of FFCRA leave. The employee must show the employer that the employee either had a plan to send his or her child to a summer program or that the child would have attended a specific camp or program had it not closed. The DOL acknowledges that there is no bright-line rule, so employers are encouraged to work with employees and remain flexible when determining whether the employee is eligible for the requested leave.

The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP routinely advise public and private employers on compliance with the FFCRA. If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614-221-1216.