July 2, 2020 The Department of Labor Issues New Guidance Regarding Employee Eligibility for FFCRA Leave Due to Closure of Summer Programs and Child Labor Rules

On June 26, 2020, the Department of Labor (“DOL”) issued two new pieces of guidance regarding the COVID-19 pandemic. In Field Assistance Bulletin No. 2020-4, the DOL clarified when employees may be eligible for Families First Coronavirus Response Act (“FFCRA”) leave due to closure of summer camps or other summer programs. In Field Assistance Bulletin No. 2020-3, the DOL clarified when schools are considered “in session” for the purposes of child labor laws.

This E-Update explains what employers need to know about these two developments.

Bulletin No. 2020-4:  FFCRA Leave Due to Closure of Summer Programs

Under the FFCRA, employees can take up to two weeks of paid sick leave and up to ten additional weeks of paid FMLA leave if the employee is unable to work or telework due to the need to care for a child whose place of care is closed due to the COVID-19 pandemic.

The DOL’s new guidance clarifies that summer camps and other summer programs may qualify as a child’s “place of care” if the parent can establish that it is more likely than not their child would have attended the camp or program.  The DOL noted that actual enrollment in a program prior to a COVID-related closure would be sufficient to establish the program would have been the child’s place of care. Absent actual enrollment, the DOL identified other evidence that could support a parent’s intent to enroll a child in a summer program, including:

  • The child attended the camp or program in prior summers and was eligible to attend again;
  • The parent submitted an application to the camp or program before its closure;
  • The parent submitted a deposit to the camp before its closure; and
  • The child is accepted into a waitlist pending the reopening of the camp or program or the reopening of its registration process.

The DOL noted, however, that a parent’s mere interest in a camp or program would by itself generally be insufficient to establish the necessary intent to enroll.

Bulletin No. 2020-3: When Schools Are Considered “In Session” for Purposes of Child Labor Laws

Under current child labor laws, children under 16 are limited to performing nonagricultural work for 3 hours on school days and 8 hours on non-school days, and no more than a total of 18 hours a week when school is in session.  When school is not in session, children under 16 may work up to 8 hours a day and up to 40 hours a week.

In this guidance, the DOL clarified that even though schools may be physically closed due to the COVID-19 pandemic, schools are considered “in session” for the purposes of child labor laws during any week in which the public school district in which the child resides requires its students to attend school, either physically or through virtual or distance learning.  In other words, if the local school district requires all students to participate in virtual or distance learning for even one day or part of a day in a given week, school will be considered in session for the entire week even if physically closed. 

What This Means

Employers must consider evidence that an employee intended to enroll their child or that the child would more likely than not have attended a summer camp or program when determining if the employee is eligible for FFCRA leave due to the closure of their child’s place of care.

Children aged 14 and 15 may work only limited hours in any week when their public school district requires them to attend school—physically or through virtual or distance learning—for a day or part of a day.

Paul Batcher   Elaine Kong   Fred Plevin