Its July. A time when in normal years, schools are closed and families are planning vacations. But in 2020, paid vacation is being replaced with paid leave under the Families First Coronavirus Response Act (“FFCRA”), leaving employers asking, can they still do that?!

For public employers and employers with less than 500 employees, the FFCRA provides two weeks of paid sick leave and up to 12 weeks of Emergency FMLA. The most popular reason for taking both leaves is that the employee is unable to work or telework due to a need to care for the employee’s child(ren) due to a school or childcare closure caused by COVID-19. Many employers hoped that the need for this leave would cease as summer arrived, after all, schools are normally closed in the summer — so the closure would no longer be caused by COVID-19. Not so fast.

Although the need for FFCRA leave due to school closures should have subsided, employees may still seek this leave if their childcare is closed due to COVID-19.

Last week the Department of Labor issued a Field Assistance Bulletin providing guidance to its investigators as to whether the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons could support an employee’s request for FFCRA leave. And the answer is, not surprisingly, yes. Summer camps and programs may qualify as places of care of employees’ children for the purposes of FFCRA leave. The question is whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons. In many cases, employees had not yet enrolled their children in these programs in March when everything starting shutting down.

According to the Bulletin, employees may be entitled to FFCRA leave for the closure of a summer camp or program if:

• The child was enrolled in the camp or program before the closure was announced;
• The family submitted an application to participate in the camp or program before the closure;
• The family submitted a deposit for the camp or program;
• The child recently attended the camp or program (in 2019 or 2018) and is currently eligible to attend again;
• The child is on a waitlist;
• Or other affirmative evidence of a plan or intent for the child to attend the camp or program.

The DOL recognized that it is not a one-size fits all inquiry, but a parent’s mere interest in a camp or program is generally not enough. The Bulletin, which is written to guide the department’s investigators tells its investigators that when evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program they should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19.

How does this help an employer? Employers are still limited in what information they can require before providing leave. Generally, 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.

Additionally, in the case of leave to care for the employee’s child whose school or place of care is closed, the employee must provide the name of the child, the name of the school, place of care, camp or summer program that is closed and a statement that no other suitable person is available to care for the child. In other words, although the employee may need to prove to the DOL investigator that it was more likely than not that the child would have attended the camp, the employee doesn’t necessarily need to prove it to the employer, making it difficult for employers to determine whether the employee is legitimately entitled to the leave.

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Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Ms. Pryor represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, the OFCCP, and the NLRB, in addition to various state agencies.

Ms. Pryor also works with employers to avoid litigation by developing effective policies and practices, including harassment policies, social media policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

She is a frequent speaker at legal seminars and to employers and professional groups and provides training to managers and human resource professionals on a wide variety of employment and legal issues, including wage and hour issues, harassment, disability, the Family and Medical Leave Act, pay equity and affirmative action obligations. She has been featured on the radio program “Employment Straight Talk” and has published a number of employment law articles.

While attending law school, Ms. Pryor was a member of the editorial board of the University of Cincinnati Law Review.

Learn more about Ms. Pryor on the Jackson Lewis website.