DOL Broadly Defines When a Summer Camp or Program is a Child’s Place of Care for FFCRA Leave

By Tracey Truesdale and Erin Fowler - Franczek P.C.

June 30, 2020

In Field Assistance Bulletin No. 2020-4, issued June 26, 2020, the United States Department of Labor, Wage and Hour Division, recognized a number of ways an employee can establish eligibility for Family First Coronavirus Response Act (FFCRA) leave based on the closure of a summer camp or program that the employee claims would have been the place of care for the employee’s child over the summer. In addition to proof of actual enrollment or application to a camp or program, if an employee’s child attended a camp or program in the summer of 2018 or 2019 and the child remains eligible for the camp or program for Summer 2020, that may be sufficient.  Likewise, if an employee’s child is accepted to a waitlist pending the reopening of a camp or program or the reopening of the camp or program’s registration process, that, too, may be sufficient. Although the DOL states that mere interest in a summer camp or program is not enough, this broad interpretation opens the door to many new requests for FFCRA leave for employees. Employers should continue to obtain as much information as possible from an employee regarding the reasons the employee considers a summer camp or program to be the provider for the employee’s child. Consider consulting with legal counsel if you receive a request where there is a question as to whether the provider is in fact the child’s provider, including requests related to a summer camp for which no application, acceptance, attendance, or enrollment has occurred.

Under the FFCRA, an employee who requests leave to care for a child based on closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements as all individuals seeking FFCRA leave for lack of childcare based on COVID-19 related reasons. 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 these and other required information are provided, the employee is eligible for up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave, of which up to 10 weeks may be paid.

The law is clear that the closed care provider must be the provider for the employee’s child, but how does the employee establish that? Prior DOL guidance provided that a closed summer camp or program may be considered the place of care for an employee’s child if the child was enrolled in the camp or program before the summer camp or other summer program announced closure. (FAQ 93). The Bulletin also recognizes that an application or acceptance for enrollment made prior to the closure would be sufficient evidence that the camp or program was the place of care for an employee’s child.

What if neither enrollment nor application occurred? As the DOL recognizes in the Field Assistance Bulletin No. 2020-4, many summer camps and programs are only for the summer, and so students may not have applied for, been accepted to, been enrolled in, or been attending the summer camp or programs when the COVID-19 began.

In general, the employee would need to show either a plan to send the child to a summer camp or program or that, even though the employee had no such plan, the child would have attended the camp or program had it not closed. The DOL stated that no one-size-fits-all rule applies. Rather, the DOL recognized a number of scenarios in which an employee’s intent or plan to send a student to a summer camp or program could be established even without actual application, acceptance, enrollment, or attendance. These include:

•    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. Accordingly, if a student 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 qualifications for attendance.
•    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.

Because of the highly fact-specific nature of the inquiry related to this and other requests for FFCRA leave for lack of childcare, employers should continue to obtain and consider all relevant information before making a determination about whether FFCRA leave applies. For assistance with responding to any request where there is a question as to whether the provider is in fact the child’s provider, including requests related to a summer camp for which no application, acceptance, attendance, or enrollment has occurred, contact the authors of this post or any other Franczek attorney.