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As businesses plan their re-openings, many employers are trying to determine how to handle employee requests for leave under the Families First Coronavirus Response Act (FFCRA) based on the unavailability of child care during the summer months. The top concern right now, especially in the South where schools normally close by Memorial Day, is whether employees continue to qualify for paid leave benefits under FFCRA even after schools are closed for summer vacation?

Accommodating employees with summer child care issues can present challenges for employers under normal circumstances. The COVID-19 pandemic has presented even more unique challenges as summer break begins. Typical summer care plans, like bible school and day camps and daycare, simply may not be an option for parents this summer due to the pandemic.

Employers will be faced with many questions from employees based on the lack of summer child care options. Determining who is eligible for paid leave benefits under the FFCRA will depend on a variety of factors and the USDOL has provided some minimal guidance on these issues, but there are several questions left unanswered.

The FFCRA Paid Leave Benefits

Under the FFCRA, employees are entitled to paid sick leave (PSL) and/or expanded family and medical leave (EFML) if they are unable to work or telework because they need to care for their son or daughter if (a) the child’s school or place of care is closed, or (b) the child care provider is unavailable, due to COVID-19-related reasons. The FFCRA regulations provide that an employee may take paid sick leave to care for their child only when the employee needs to, and actually is, caring for their child. The USDOL has advised that “generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.” The DOL also encourages employers and employees to explore teleworking and intermittent leave options under these circumstances.

School Closures And Summer Plans

Now that the academic school year is done, do employees remain eligible for paid leave during summer vacation? In response to Question 93 in its FFCRA Questions and Answers, the USDOL recently clarified that employees may not take paid leave to care for children because school is closed for the summer. However, the USDOL further advised that employees may be eligible to take leave if their child’s care provider during the summer — including a camp or other program in which the employee’s child was enrolled — is closed or unavailable due to a COVID-19 related reason.

A Suitable Individual To Provide Child Care

The next logical question is what if the employee’s preferred child care provider is not available but other daycare options are available. The answer to this question is not entirely clear from the current USDOL guidance. However, as noted above, the FFCRA regulations suggest that an employee is not eligible for paid sick leave if another “suitable individual” — such as a co-parent, co-guardian, or the “usual child care provider” — is available to provide child care. The USDOL also repeated this verbiage in its FFCRA Questions and Answers in response to Question 69 (“Can more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for my child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?”).

While the USDOL has not addressed this issue squarely, forcing an employee to place their child in a day care or other child care setting, if the child’s “usual” child care provider is closed due to COVID-19-related reasons, clearly risks a claim for interference with leave rights under the FFCRA.

Handling Requests For FFCRA Leave This Summer

Employers faced with a request for paid leave on the basis that camps and summer day care are closed should have a discussion with their employees about what their typical summer child care plans were pre-COVID-19. If the employee worked for the employer during the prior summer vacation, what were the child care arrangements at that time? If the employee’s typical child care provider is closed due to COVID-19, then the employee likely is eligible for FFCRA leave. If the employee’s usual child care provider is available, but the employee is just generally uncomfortable sending their children, they may not be eligible.
Failing to provide paid leave if an employee is qualified can subject employers to significant liability, including back pay, liquidated damages, attorneys’ fees, and reinstatement in the event of a termination. You should carefully consider all leave requests and seek the advice of employment counsel before denying a leave request.

Conclusion

As you begin the process of reopening, you should familiarize yourself with our prior POSTS. Schwartz Rollins will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate.

This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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