Labor & Employment News Alert

School’s Out for Summer: Do Employees Still Get Paid Leave?

May 27, 2020

By: Jill E. Hall

Although it’s been some time since many children have physically attended school, the school year is officially coming to a close across the country. No more virtual classes, at-home learning and parent-led studies (at least for a little while). Kids and parents/caregivers alike may be happy to get a break from what has been a unique couple of months as schools and families adjusted to at-home education during the COVID-19 pandemic, but summer may not look the same for kids who would typically spend it attending summer camps or other summer programs. What does the summer break mean for employees who may have been afforded paid leave under the Families First Coronavirus Response Act (“FCCRA”) to care for their children over the past two months while school was in session?

Since April 1, FFCRA’s leave provisions have afforded eligible employees paid leave for various qualifying reasons, including to care for children whose school or place of childcare is closed, or whose childcare provider is unavailable, due to COVID-19. Employees unable to work or telework for this reason are eligible for up to twelve weeks of paid leave. Employees requesting such leave need only provide the name of the child being cared for, the name of the school or place of childcare, and a representation that no other suitable person is available to care for the child. Employers should understand that such leave may not necessarily end now that the school year has ended. Summer camps and enrichment programs previously relied on by parents and caregivers to provide childcare during the summer months may not be reopening in parts of the country, leaving employees with limited childcare options.

In a set of Frequently Asked Questions, the Department of Labor explains that a place of childcare includes summer care:

What is a “place of care”?

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.

Based on the DOL’s guidance, eligible employees who cannot work or telework because a child’s summer “place of care” is closed continue to be eligible for extended family leave (up to twelve weeks). An employee still must certify that no other suitable person is available to care for the child. Further, the IRS has instructed that that an employee seeking leave to care for a child older than fourteen during daylight hours should provide a statement that special circumstances exist requiring the employee to provide such care. Employers should continue to carefully assess employees’ requests for leave under the FFCRA during the summer.