Summer is upon us and businesses are slowly reopening across the country in the wake of the COVID-19 outbreak. But employers and employees are now faced with a new challenge.

Employees’ have potential entitlement to paid time off to provide childcare now that businesses are reopening, but many daycare centers, summer camps and other elective summer programs remain unavailable. Prior to summer, employers had a clear path via the expanded FMLA paid leave law created by the Families First Coronavirus Response Act (FFCRA).

Now that schools are closing for summer, small business clients may face added complications when employees request paid leave to care for children who might be home for summer even in the absence of COVID-19. Employers should address these requests carefully, paying close attention to current and future DOL guidance on the subject.

FFCRA Paid Leave Law

Parents who have now spent months grappling with the need to care for (and even providing schooling for) their children while juggling telework or the financial stress of unemployment may now be faced with a new struggle: balancing return-to-work with childcare needs in an environment where options may remain severely limited.

Under the FFCRA, employees were entitled to receive partial wage payments in order to care for children whose schools were closed, or regular childcare providers were unavailable, due to COVID-19. To qualify the employee must actually be providing care for the child and must certify that no other suitable person, including a co-parent or the usual care provider, is available.

The additional paid sick leave is capped at two-thirds of the employee’s pay rate, subject to a maximum $200 cap per day or $2,000 total if the employee is caring for a child whose school or usual child care provider is unavailable because of a COVID-19-related reason—the most prominent of which is that schools have been closed by government orders across the country. These payments are available for a total of 12 weeks—two weeks under the expanded paid sick leave provision and 10 weeks under the new FMLA rules.

DOL Guidance on Summer FFCRA Leave

The initial DOL guidance provides some clarity on whether parents are entitled to take FFCRA leave this summer. According to the guidance, the fact that schools are closing for the summer does not provide a valid reason for paid FFCRA leave. On the other hand, if the child’s usual summertime childcare provider is unavailable, the employee may be eligible for paid leave. This includes summer camps and similar activities that parents typically rely upon for childcare in the summer months.

However, the guidance does not clearly address what employers should do if the employee’s preferred childcare option is unavailable, but other options are available. In other words, the DOL has yet to clarify what constitutes other “suitable” childcare.

DOL language does indicate that it may require that the child was already enrolled in the camp or summer program as a condition for FFCRA eligibility, but it is far from clear whether the DOL will provide additional clarity. For example, the employee may be able to establish unavailability based upon an intent to enroll the child in summer camp, or upon the fact that the child had attended summer camp in the past.

Because of this uncertainty, employers should be careful when evaluating requests for FFCRA leave during the summer months. Unjustly denying an employee’s request can subject the employer to employment litigation and liability. As a matter of course, small business clients should consult an employment lawyer when handling uncertain leave requests.

The employer should also request documentation that includes (1) the name and age of the child being cared for, (2) the name of the childcare provider that has become unavailable and (3) a statement that no other suitable person is available to care for the child. Further, for children between ages 14 and 18, the employee should certify that some type of special circumstance exists so that the child requires care during the daytime hours.

Conclusion

The DOL has released interpretive guidance on the FFCRA paid leave on a rolling basis—meaning that they may release additional clarifying guidance in the coming days and weeks, as we move into summer. For now, employers should pay close attention to the current guidance and remember to keep careful records of the rationale behind any decisions regarding childcare-related paid leave.

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