By Ingrid N. Culp and Kendra D. Simmons
During the summer months, when school is not actually “closed,” is an eligible employee entitled to paid leave under the FFCRA if the employee needs to care for his/her child(ren) because the child(ren)’s summer programming has been cancelled?
Yes, if the employee’s summer “child care provider” is unavailable due to COVID-19 precautions and the employee is unable to work or telework because the employee needs to care for his/her child(ren).
The Families First Coronavirus Response Act (FFCRA) requires covered employers to provide an eligible employee up to 12 weeks of paid leave, subject to daily payment caps, if the employee is unable to work or telework because the employee needs to care for his/her child(ren) whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions.
Over the summer months, many families enroll their children in one or more day or overnight camps or programs to provide care for their children while the parents work. Many of these camps and programs have been cancelled due to COVID-19. This has left some parents wondering if they are eligible for leave under the FCCRA to care for their children who will now be home with them over the summer. Late last week, the U.S. Department of Labor provided additional guidance on this issue in its updated Frequently Asked Questions. Question #67 provides (emphasis added):
What is a “place of care?”
A “place of care” is a physical location in which care is provided for your child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs and respite care programs.
The newly-added Question #93 provides that cancellation of summer camps or other summer programs is a permissible reason for leave under the FFCRA if such cancellations and resulting child care responsibilities render the employee unable to work (emphasis added):
I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?
No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation or any other reason that is not related to COVID-19. However, the 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.
If an employee requests leave over the summer due to child care responsibilities, such request should be reviewed carefully for eligibility under the FFCRA. It remains unclear how much effort a parent is expected to make to find alternative child care in some situations when they have advance notice of their first-choice place of care being closed for the summer, but guidance on these issues is continuously evolving.
Ultimately, an employee must (1) certify that he/she needs to care for a child under the age of 18 because the child’s school, child care, or child care provider is closed or unavailable because of COVID-19; (2) provide the name and age of the child(ren); (3) identify the school or place of care closed; and (4) certify that no other person will be providing care for the identified child(ren) during the period for which he/she is requesting leave.
For children between the ages of 14 and 18, employers should ask the employee to specify what “special circumstances” exist to require that the employee take leave to care for the child to comply with certain IRS guidance for claiming the tax credit.
If you have any questions regarding FFCRA leave rights, contact your Fredrikson & Byron attorney.