FFCRA Leave Due to Closure of Summer Camps
Updated: July 10, 2020
Families First Coronavirus Response Act
The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. With the summer months upon us, many clients are inquiring about what paid leave it provides for employees to care for their children when a school or care provider is closed.
The Department of Labor has released guidance clarifying when employees may take FFCRA leave due to the closure of summer camps. The leave is available for up to 12 weeks, 10 of which are paid at the rate of 2/3 the employee’s normal rate of pay, subject to a daily cap of $200 per day. Employers of up to 500 employees are subject to the law, although employers with fewer than 50 employees may be exempt if providing such leave would jeopardize the business’s viability. Employers covered by the law can receive tax credits to reimburse them for the paid leave provided to employees.
The new guidance states that DOL considers a summer camp a place of care under the FFCRA. If a summer camp the employee’s child would have attended is closed, the employee-parent may take FFCRA leave if necessary to care for their child if they are otherwise eligible. However, the COVID-19 closures began in March 2020, before camps were open for the summer, and in some instances, before they were enrolling campers. Because of these facts, the analysis of whether a child would have attended a particular summer camp may be more complicated than whether a child attended a particular school or daycare provider. DOL’s guidance indicates that they consider actual enrollment in a summer camp, as well as the submission of an application and/or deposit as proof that a particular camp would have been the child’s care provider. Additionally, prior attendance at the camp in 2018 or 2019 paired with continued eligibility may indicate that that camp was the planned place of care for summer 2020.
The DOL guidance indicates that an employee must be able to identify a particular camp that would have been the care provider for the child, by either showing that there was a “plan” for the child to attend that camp or that it was more likely than not that the child would have attended the camp even if there was no solid plan for the child to do so. In practical terms, the employee must be able to identify a particular camp as the intended care provider for the child, but there is no clear rule as to the standard of proof.
Additionally, closure of a summer camp includes partial closure, such as operating at a reduced capacity due to COVID-19 such that some children who would have attended the camp may not do so. Online camps will likely also be considered “closed” for purposes of childcare.
Employers will need to document the child’s name, relationship to the employee, the intended care provider, and that there is no other suitable person available to provide care for the child (for example, the child’s other parent) during the time that the employee is requesting paid family leave. The employer must retain this documentation, which will likely be a form or statement that the employee must sign, in order to claim the reimbursement through tax credits.