The Summer-time Child Care Blues

As businesses plan their re-openings in the face of the COVID-19 pandemic, if you are a parent, you are most likely facing the grim reality that despite your months of planning summer childcare, nearly every summer camp and activity for summer 2020 has been cancelled. If you can perform your job remotely, you can likely manage some type of reduced work schedule while keeping an eye on your children. But if your job is one that requires your presence at your employer’s place of business or out in the field, you are facing a real dilemma, particularly in places like Georgia, where school regularly ends prior to Memorial Day.

Under the Families First Coronavirus Response Act (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. However, paid sick leave and emergency family and medical leave are not available if the school or child care provider is closed for summer vacation, or any other reason, that is not related to COVID-19. Thus, according to the language of the FFCRA and the interpretation provided by the U.S. Department of Labor, once the last scheduled day of the regular school year arrives, a parent is no longer entitled to paid leave for the qualifying reason that their child’s school has closed due to the pandemic.

Many parents are now left wondering if they are eligible for leave under the FCCRA to care for their children who are now out of school for the summer break. Late last week, the U.S. Department of Labor provided additional guidance on this issue in its updated Frequently Asked Questions. Question #67 provides (emphasis added):

Q: What is a “place of care?”
A: A “place of care” is a physical location in which care is provided for your child. The physical location does not have to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs and respite care programs.

The DOL also added Question #93 that provides that cancellation of summer camps or other summer programs is a permissible reason for leave under the FFCRA if such cancellations and resulting child care responsibilities render the employee unable to work (emphasis added):

Q: I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

A: No. Paid sick leave and emergency family and medical leave are not available for this qualifying reason if the school or child care provider is closed for summer vacation or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.

Although a closed camp or summer program may form the basis for FFCRA paid leave benefits, parents must be aware that this leave is available 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.” Ultimately, an employee must certify to his/her employer that he/she (1) needs to care for a child under the age of 18 because the child’s school, child care, or child care provider is closed or unavailable because of COVID-19; (2) provide the name and age of the child(ren); (3) identify the school or place of care closed; and (4) certify that no other person will be providing care for the identified child(ren) during the period for which he/she is requesting leave. When the employee requests leave to provide care for a child older than 14 (i.e., age 15 to 17) during daylight hours, the statement should also indicate that special circumstances exist that require the employee to provide care. Parents requesting leave should be prepared to discuss these issues with their employer. The DOL encourages flexible, voluntary arrangements between employers and employees when it comes to taking paid leave, including agreements for intermittent leave while working or teleworking.

A question that might arise in dealing with this issue is if your preferred child care provider is not available, but other daycare options are available, are you entitled to paid leave if you reject the other available care. The answer to this question is not entirely clear from the current USDOL guidance. However, 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 response to Question 69 of its FFCRA Questions and Answers (“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?”).The USDOL has not addressed this issue squarely, and It remains unclear how much effort a parent is expected to make to find alternative child care if their first-choice is being closed for the summer. As always, open discussion and give and take between you and your employer is the best course of action.