In response to the COVID-19 health emergency, Congress passed the Families First Coronavirus Response Act (FFCRA). The FFCRA mandates two (2) weeks of Expanded Paid Sick Leave (EPSL) and up to 10 weeks of Expanded Family Medical Leave (EFMLA) be available to employees of businesses with fewer than 500 employees. One of the goals of the FFCRA was to provide paid leave for employees whose children no longer had a “place of care” to attend during the work day due to COVID-19.
Most children were in the midst of finishing the 2020 spring academic semester when the COVID-19 health emergency began. This timing meant that it was easy to determine if a child belonged to a specific “place of care” that had closed due to COVID-19, because it was likely the school or daycare that child had been attending since the 2019-2020 academic school year began – i.e. before the pandemic.
Now that summer is here, parents and employers are faced with the new challenge of identifying what constitutes as a “place of care” under the FFCRA. Many summer camps and programs were closed down before children were able to attend – or even enroll. Such camps and programs therefore would not have been “places of care” of any child at the time they closed. So how are parents to prove that their intentions were to enroll their child in a specific camp or program that has since shut its doors?
In the Field Assistance Bulletin No. 2020-4, the U.S. Department of Labor (“The Department”) further explains in the FFCRA the definition of a “place of care”, as well as other ways of satisfying the requirement of naming the summer camp or program that a child would have attended. A “place of care” is defined as a physical location in which care is provided for the employee’s child while the employee works and includes summer camps and summer enrichment programs. The Department noted that, among others, the following steps may satisfy the requirement of naming a specific “place of care” for a child;

• If the camp or program had an application process, submission of an application prior to the camp’s closure;
• Submission of a deposit prior to the camp’s closure;
• Recent prior attendance, such as attendance during the summer of 2018 or 2019, so long as other eligibility requirements are satisfied;
• Acceptance to a wait list for the camp or program;

As noted in the FFCRA, there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a summer camp or program. It would be impossible to address every potential circumstance under which an employee may satisfy these requirements. Therefore, the Department recognized in its guidance that there can be no one-size-fits-all rule.
When determining whether to approve or deny FFCRA leave to an employee based on the closure of a summer camp or program, employers should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19. If you need assistance regarding the approval or denial of FFCRA leave, or other employment law matters, please contact Kristina Curry or Matt Stokely or call (937) 223-1130.

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