On June 26, 2020, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-4, addressing employee paid leave under the Family First Coronavirus Response Act (FFCRA) to care for a child whose summer camp, enrichment or other program is closed due to COVID-19. The FFCRA allows an employee up to 10 weeks paid leave (Expanded Family and Medical Leave – EFMLA) to care for a child(ren) “whose place of care is closed due to COVID-19 related reasons.”  29 C.F.R. 826.20(a)(v), (b). During the school year, it was relatively clear whether a school was closed, and whether the child went to the school. However, summer care, typically filled with various camps and other enrichment programs for school-aged children, can present more problems when an employer must determine whether the employee is eligible for EFMLA leave based on a summer camp they cannot sign up for whether it is closed, or enrollment limited.

In short, the DOL instructs that the question is: “whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons, which must be established by a preponderance of evidence in any enforcement action (i.e. more likely than not).”

The DOL recognizes a “multitude of possible circumstances” regarding summer camp registration prevents a “one-size-fits-all rule”, but offers some general examples:

  • Current enrollment (sufficient).
  • Mere interest in camp (insufficient).
  • Past attendance in 2018 or 2019 (sufficient so long as continued to meet requirements such as age range).
  • Being accepted to a wait list (sufficient).
  • Summer school registration (sufficient).
  • Past attendance but no longer eligible (i.e. too old) (insufficient).
  • Submission of application prior to camp closure (sufficient).
  • Submission of a deposit (sufficient).

Employers should remember the above threshold – did the employee provide proof that their child was more likely than not going to attend the cancelled program.