Last week, we discussed the bulletin released late last Friday by the Department of Labor (DOL) announcing that the agency would stop routinely seeking liquidated damages in pre-litigation settlements under the Fair Labor Standards Act. The DOL had a busy Friday afternoon at the end of June, though, because in Field Assistance Bulletin No. 2020-4, the DOL’s Wage and Hour Division also clarified a number of situations where employees can establish eligibility for Family First Coronavirus Response Act (FFCRA) leave based on the closure of a summer camp, summer enrichment program, or other summer program.
On March 18, 2020, President Trump signed the FFCRA. Among other things, the FFCRA does three things: (1) expands the Family and Medical Leave Act (FMLA) until December 2020 to cover leave and loss of income when an employee needs to care for children because of COVID-19-related school and childcare closures; (2) creates two weeks of paid sick leave for childcare and other leave related to the coronavirus; and (3) provides for tax credits related to the paid leave mandated by the act.
An employee who requests leave to care for a child based on the closure of a summer camp, summer enrichment program, or other summer program must satisfy the same requirements as other individuals seeking FFCRA leave for lack of childcare because of COVID-19. The requirements include providing in writing the name of the child, the name of the specific camp or program that the child would have attended, and a statement that no other suitable person is available to care for the child. Once an employee provides this and other required information, the employee is eligible for up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave (10 weeks may be paid).
For now, the FFCRA applies only to certain employers, namely private employers with fewer than 500 employees and governmental agencies. However, Congress may yet expand coverage to larger or even all employers. The HEROES Act that passed the House in May and is currently languishing in the Senate would expand FFCRA coverage to employers of all sizes and industries with essentially no exceptions. The HEROES Act would also significantly expand the covered reasons for which employees may take paid leave under the FFCRA. All employers should watch the progress of this bill and larger employers in particular should put contingency plans in place to implement FFCRA leave if the Senate passes some version of the Act.
The Bulletin’s Clarifications on Summer Programs and FFCRA Leave
After the passage of the FFCRA, employers and employees struggled to apply certain provisions of the FFCRA when the reason for leave was the closure of a summer camp or program that an employee would have sent his or her child to for summer care. The FFCRA was clear that the unavailable program must be for the employee’s child, but prior DOL guidance left open questions about how an employee could sufficiently establish that. Prior DOL guidance provided that an employee could make this showing through proof of actual enrollment or application to a camp or program, or at least evidence of prior enrollment in 2018 or 2019 and current waitlisting or other eligibility for 2020 (see FAQ 93). The new Bulletin recognizes that an application or acceptance for enrollment made prior to a program’s closure would ALSO be sufficient evidence.
Prior guidance from the DOL also failed to explain what would happen if, due to the coronavirus pandemic, the employee could not enroll or even apply, though. The Bulletin helpfully clarifies that, because these camps and programs happen only during the summer, employees’ children may not have applied for, been accepted to, been enrolled in, or been attending the summer camp or programs back in March when the pandemic began.
The Bulletin explains that the employee would need to show either a plan to send their child to a summer camp or program or that, in the (unsurprising) absence of such a plan, the employee would need to show that their child would have attended the camp or program if it had been available. The DOL outlined several common scenarios where an employee could establish intent or plans to send a child to a camp or program even without an actual application, acceptance, enrollment, or attendance, including:
- Prior attendance and current eligibility at a summer camp or program. The Bulletin states that prior attendance and current eligibility is sufficient to establish a summer camp or program as a child’s planned place of care. Per the Bulletin, if an employee’s child attended a camp or program during the summer of 2018 or 2019, that “may” indicate that the camp or program would have been the child’s place of care during summer 2020, as long as the child continues to satisfy any attendance qualifications.
- Acceptance to a waiting list for a camp or program or to the reopening of the registration process for the camp or program. This situation might apply if a child only recently met age requirements for a summer camp or program or recently moved into the area serviced by the camp or program.
The Wage and Hour Division warns that no one-size-fits-all rule applies, though. The inquiry into this eligibility is fact specific, so employers should carefully collect and evaluate information before taking any action on an FFCRA leave request.