School’s Out: The Use of Paid Leave for Summer Child Care

May 20, 2020Alerts

As states slowly open back up, the school year is coming to an end and employees are expected to return to work. Unfortunately for working parents, many summer camps and child care programs have been cancelled due to COVID-19 leaving working parents in a child care dilemma.

Under these circumstances, some employees may use paid leave to care for their children whose summer school or place of care has been closed due to COVID-19.

What the FFCRA Says

The Families First Coronavirus Response Act (FFCRA) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for qualifying reasons, including when an employee is unable to work or telework because they are caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

According to the Department of Labor’s (DOL) updated Frequently Asked Questions, a summer program qualifies as 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.

Thus, eligible employees of qualifying employers who are tasked with returning to work or teleworking but cannot send their children to their summer “place of care” are eligible for expanded family leave.

However, an employee generally will not be eligible for leave if another parent, guardian, or usual child care arrangement is available to provide the necessary care. When an employee qualifies for leave, an employer must document:

  • the name of child being cared for
  • the name of school, place of care, or child care provider that is closed or unavailable
  • a statement from employee that no other suitable person is available to care for the child

Employee Compensation

Employees may take both paid sick leave and expanded family and medical leave when caring for a child whose school or place of care is closed for reasons related to COVID-19. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period covers the first ten work days of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act (unless an employee elects to use existing vacation, personal, or medical or sick leave under an employer’s policy).

After the initial ten-day period, employees will receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act. Employers should note: the additional ten weeks of expanded family and medical leave is only available for employees who take leave to care for children whose school or place of care is closed due to COVID-19 related reasons.

Intermittent Leave

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.

While an employee is working on site, an employer and employee can agree to an intermittent  schedule if child care is limited or unavailable. For example, an employee may take paid leave on Mondays, Wednesdays, and Fridays to care for a child if their regular child care is only available on Tuesdays and Thursdays.

While teleworking, if any employee is unable to telework normally scheduled hours because of the need to care for their child, an agreement can be made for intermittent leave. For example, an employee could telework from 1 to 2:30 pm, take leave from 2:30 to 4 pm, and then return to teleworking. Additionally, the fact that an employee has already been teleworking despite having their children at home does not disqualify them from now taking leave to care for children whose schools or camps are closed for a COVID-19 related reason.

There are some schools and summer programs that will be open on a full or limited basis subject to social distancing guidelines. Employers should endeavor to be flexible and make agreements with their employees that serve the health and safety of their families as well as the needs of the business.

Fox Rothschild will continue to provide updates regarding COVID-19 and its impact on employers. For additional information, visit our Coronavirus Resources Page and subscribe for automated updates, or contact any of the attorneys in our labor and employment department.