On June 26, 2020, the U.S. Department of Labor (DOL) published a Field Assistance Bulletin (FAB) providing guidance for its Wage and Hour Division (WHD) investigators as to “when an employee may take leave under the Family First Coronavirus Response Act (FFCRA) to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer programs for COVID-19 related reasons.”

Overview.

Initially, the FFCRA intended to reach employees who were unable to work or telework due to school or child-care closures associated with COVID-19. As summer progresses further, the pandemic still poses a significant childcare issue for parents, particularly when it comes to summer camp closures. The DOL published this guidance to clarify that the expanded protections under the FFCRA continue to apply when an employee cannot work because they need to care for a child who would have attended a summer camp or a related place of care.

Further, the guidance confirms that an employee who requests leave to care for a child must provide documentation regarding the name of the child, the name of the summer camp that the child would have attended had the camp not been closed, and a statement that no other childcare is available. Below are reasons that qualify and reasons which are not sufficient for an employee to take leave under the FFCRA under these circumstances.

Which summer programs qualify?

Specifically, the Department's regulations recognize that summer camps and programs may qualify as child-care facilities for the purpose of FFCRA leave, even though they would not have been in operation at the time the regulations were issued in April 2020.

For the summer camp closure to qualify for FFCRA leave, the employee must show that they actually intended for the child to attend the camp. The DOL issued the following examples showing whether a summer camp or program qualifies as a place of care for an employee’s child:

  • If the child was enrolled in the camp or program prior to the closure being announced by the summer camp or other summer program.
    • Affirmative steps ahead of the final enrollment can also be sufficient. For example, the parent can show their intent to enroll their child by completing the application process or submitting a deposit.
  • If the child attended the summer camp or program previously and remains  eligible to attend.
    • For example, if a child aged 10 attended the summer camp or program intended for children ages 8 to 13 during the summer of 2018 or 2019.

The DOL recognizes that there may be other circumstances indicating a parent’s intent to send their child to a summer camp prior to a closure and these should also be considered. While sufficient to establish intent, current enrollment or prior attendance are not necessary. For example, if a parent delayed in making childcare plans for the summer due to COVID-19 and the child is later accepted to a waitlist pending the reopening of the camp.

What does not qualify?

The following reasons would not be sufficient for an employee to take leave under the FFCRA to care for his or her child based on these closures:

  • A parent’s mere interest in a camp or program.
  • If a school is closed for summer vacation or another reason not related to COVID-19.
  • If the child no longer qualifies for attendance so the closure does not impact their ability to attend.
    • Example: “A 13-year-old child who attended a summer camp for children age 10 to 12 in 2018 and 2019 would no longer qualify to attend the same camp in 2020.”
  • A child's attendance at a camp or program during the summer of 2017 or earlier.

As an employer, it is recommended that you seek guidance if you are uncertain on how to proceed with an employee requesting leave due to summer camp closures.

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Disclaimer: Please note that this is not all-inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding the specific application of the information to your own plan.