Not All Leave for Summertime Childcare Needs is Covered by the FFCRA

By Marylou Fabbo - Skoler, Abbott & Presser, P.C.

July 7, 2020

The Families First Corona Virus Response Act (FFCRA) provides employees with partially-paid time off for certain COVID-19 related reasons.  In this blog, we are addressing the ability to take FFCRA paid leave to care for a child whose summer camp or program is closed for reasons related to COVID-19.

During the summer, employees may be left without childcare because summer camps are closed or have significantly reduced capacities as the result of Massachusetts’ Re-Opening Plan restrictions.  However, FFCRA leave is not all-encompassing and simply being without care for a child does not automatically qualify an employee for leave.  Not everyone with childcare needs resulting from a decrease in available summer programming will be eligible for FFCRA time off according to the Field Assistance Bulletin recently issued by the US Department of Labor’s Wage and Hour Division (DOL).

Emergency Paid Sick Leave or Extended Family and Medical Leave

The FFCRA has two potential sources of protected, paid time off for employees who have summer care needs.  Care-related time off can come in the form of up to 80 hours of Emergency Paid Sick Leave (EPSL) and up to 12 weeks of Expanded Family and Medical Leave (EFML).

First, the Act provides that employees of employers with fewer than 500 employees provide up to 80-hours of EPSL at two-thirds of the employee’s regular rate of pay if the employee is unable to work because of a need to care for a minor child whose childcare provider is closed or unavailable for COVID-19 related reasons.

Second, an employee may be entitled to an additional 10 weeks of EFML, also paid at two-thirds the employee’s regular rate of pay, for the same reasons.  The first two weeks of EFML can be unpaid or the employee can use their EPSL at their option.  In the case of EFML, the employee must be employed by an employer with less than 500 employees, and the employee must be employed for at least 30 days before becoming eligible to take the leave.  Further, any “regular” FMLA time off taken counts against the employee’s 12-week EFML entitlement.    

Employees max out at $200 per day or a total of $12,000 for 12 paid weeks including EPSL and EFML.  Businesses with fewer than 50 employees may qualify for an exemption from the two provisions when providing the leave would jeopardize the viability of the business as a going concern.  

Evidence of Planned Attendance in a Summer Program

So, when is an employee is unable to work because of a need to care for a minor child whose childcare provider is closed or unavailable for COVID-19 related reasons?  Mere interest in a summer program is not enough to establish entitlement to the leave.  In its June 26, 2020, Field Assistance Bulletin No. 2020-4, the DOL made it clear that time off under the FFCRA is not intended to provide employees with a paid summer vacation. To be eligible for the leave, employees must establish that they actually planned to send their children to a particular camp or program, and the summer camp or program that the employee claims would have been the place of care for the employee’s child over the summer actually would have been.  The burden is on the employee to submit proof of affirmative steps to enroll the child.  Here are some examples provided by the DOL:

- Proof of actual enrollment or application to the camp or program before it closed;
- Proof that the child attended the camp at issue in 2018 or 2019, and evidence that the child remains eligible for the camp in 2020;
- Evidence establishing that the child has been waitlisted pending the reopening of the camp or program; and/or
- Proof of a deposit paid.

According to the DOL, the above list isn’t intended to be all-encompassing and other evidence of an intent to attend may be enough to support the need for FFCRA-covered leave.

No Other Parent is Available to Care for the Child

To qualify for the leave, an employee also must establish that s/he is unable to work or telework to provide care for the child or children under 18.  An employee is not entitled to the leave if there is another parent at home who could care for the child.  Additionally, if a child is 14 or older, employees are required to explain the special circumstances that require the parent to care for the child.

Addressing FFCRA Requests Related to a Lack of Summer Care

We have generally recommended that employers require employees to complete request forms when seeking to take leave for childcare-related reasons, including the inability to send a child to camp this year.  There should be room on the form (or a checklist) for the employee to identify the specific need for the leave, provide proof of the intent for the child to have attended the camp or program that’s closed or has reduced capacity, as well as the age of the child (and any attenuating circumstances should the child be at least 14) and a statement that no other parent is available to care for the child.  The employee should sign and date the form stating that the above information is true and accurate.