On Friday we posted a legislative update covering the status of pending leave of absence bills throughout the states. This post comes right on the heels of that so if you didn't see it, just scroll down below this post or click here to check on happenings in the states where you do business.

COVID’s not gone, but leave of absence news has slowed to a manageable pace. The latest update from the Department of Labor is much-needed guidance on how an employee can establish entitlement to paid leave under the Families First Coronavirus Response Act (FFCRA) when their child’s summer care program is closed. After all, many parents had not yet made summer child care plans when COVID-19 became a thing earlier this year. On June 26, the DOL addressed this issue in Field Assistance Bulletin No. 2020-4. (FABs are written by the Office of Regulations and Interpretations to provide guidance in response to questions that have arisen in DOL field operations.)

As a refresher, FFCRA provides certain paid leave for an employee who is unable to work or telework due to a need to care for a child if the child’s school or place of care has been closed or the child care provider is unavailable for reasons related to COVID-19:

The Emergency Paid Sick Leave (EPSL) provisions of FFCRA require employers with 1-499 employees to provide up to 2 weeks/80 hours of paid leave at 2/3 the employee’s usual salary (up to $200 per day, $2000 total).
In addition, the Expanded Family and Medical Leave (EFML) provisions require the same employers to provide up to 12 weeks of FMLA leave.The first 2 weeks of such EFML is unpaid (covered instead by the EPSL) and the remaining 10 weeks (or as much as is taken) is paid at 2/3 the employee’s usual salary (up to $200 per day, $10,000 total).

In FAB 2020-4 the DOL reviews the basic principles already established with respect to “school closure” leave under the FFCRA. A “place of care” is a physical location in which care is provided to an employee’s child while the employee works. The term includes summer camps and summer enrichment programs. An employee requesting leave due to a school closure must inform the employer of, among other things, the name of the child, the name of the school or place of care that closed due to COVID-19, and a statement that no other suitable person is available to care for the child.

Identifying the place of care. When an employee needs leave due to the closure of a summer program the requirement is the same: The employee must name the specific summer camp or program that would have been the place of care for the child had it not closed.

However, unlike regular schools or day care centers, many summer programs closed in response to COVID-19 before any children were in attendance or even before the program commenced enrollment. As a result, it can be challenging to identify the place the child would have attended but for COVID-19. Although absolute proof is not required, a parent’s mere interest in a place of care is not enough. Rather, the parent needs to show that, more likely than not, the child would have attended the specific place now closed.

According to the DOL, the requirement to identify the program that would have been the child’s place of care but for COVID-19 can be satisfied in various ways. The simplest is to show that the parent had applied to, submitted a deposit for, or enrolled the child in the program before it was closed.

The parent can also show that the child attended the program in prior summers and was eligible to attend in 2020. A child’s attendance at a camp or program during the summer of 2018 or 2019 may indicate that the same program would have been the child’s place of care during summer 2020 as long as the child is still eligible. For example, a child who previously attended a camp for children ages 12 and under would not be eligible if the child is now 13 in 2020, so the closure of that camp would not be a basis for school closure leave to care for that child. Moreover, the DOL says the attendance must be fairly recent, so if a child hasn’t attended a program since 2017 that won’t establish, without more, that it is “more likely than not” the child would have attended that program in 2020.

Reduced capacity at the planned place of care that results in no space for the employee’s child will also be considered a “closure” if the parent can otherwise establish that the child would have attended that program.

The DOL recognizes that there cannot be a one-size-fits-all rule to establish that a child, more likely than not, would have attended a specific summer place of care but for a COVID-19 closure. While actual enrollment or recent prior attendance are valid considerations, neither is required and other factors may be shown. A parent’s delay in making plans due to uncertainty in whether a specific place would be open, the child attaining an age of program eligibility, or being on a wait list in case the program reopens could all be indicators of a specific summer program the child more likely than not would have attended.

Two more points to remember. First, for other types of schools or day care providers, the regular rules still apply. If, for example, the child’s school is usually in session more than the typical 9-10 months per year, the actual closure of the physical place may still support paid leave and job protection under EPSL and EFML. Same for the unavailability of a usual day care provider such as a nanny, neighbor, or family member.

Second, it is not clear whether this kind of evidence of an employee’s need for school closure leave will be sufficient to qualify the employer’s FFCRA payments for the tax credits.

For more information. If you need a refresher on the FFCRA you can review our prior blog post summarizing the act here. We’ve had many FFCRA updates and have covered other COVID-19 issues in the last several weeks, so just scroll through the blog or search for “COVID” or your state to catch up.

For more information regarding the school closure paid leave and expanded FMLA, see the DOL’s FFCRA Questions & Answers, particularly Questions 66-70 and 93 – or search the document for “school” to find all related questions and answers.