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If you have young children like me, you know all too well how hard it can be to keep them busy and out of mischief. While the task was a difficult one even before COVID-19, thanks to the many closures the pandemic has necessitated it has been made that much harder. Among the many impacts this public health crisis has had on families, it has necessitated the closure of many summer camps. While a few day camps and recreational programs are operating this season, numerous others (and all sleepaway camps in New York State) are closed, further limiting parents’ options for keeping their youngsters happy and engaged this summer.
For kids who have looked forward to fun-filled days of swimming, playing sports, doing arts and crafts and engaging in other activities with new-found friends, news that their camp will be closed this summer will surely come as a disappointment. For parents, however, having unhappy campers on their hands may be the least of their worries. That is because for many working parents, summer camps and summer programs also function as childcare, and without them they are left with no one to care for their children while they are at work.
As many employers will recall, under the Families First Coronavirus Response Act (FFCRA) employers with fewer than 500 employees are required to provide eligible employees with up to 2 weeks of paid sick leave and up to 12 weeks of expanded family and medical leave, of which up to 10 weeks may be paid. FFCRA leave may be taken if the employee is unable to work or telework due to a need to care for his or her child whose place of care is closed due to COVID-19 related reasons.
A “place of care” is a physical location in which care is provided for the employee’s child while the employee works. While the U.S. Department of Labor (DOL) previously defined a “place of care” as a school or day care center, with the arrival of summer DOL recently issued guidance expanding the definition to include summer camps and summer recreation programs as well. Employees who seek leave FFCRA leave are required to inform their employer that leave is necessary to care for the employer’s child due to a COVID-19 related closure. Specifically, the employee must provide the child’s name, the name of the place of care (school, daycare center or summer camp), and represent that no other suitable adult is available to care for the child.
Unfortunately, FFCRA regulations limit the extent to which employers may request back up documentation supporting the need for requested leave. This opens the door to possible abuse of FFCRA leave by employees who simply want to take time off. That is not to say an employer must accept an employee’s word that their kid’s camp is closed at face value if it is obviously not true. For example, if the employer knows that the employee’s spouse is a teacher and does not work during the summer months, the employer would have legitimate grounds for rejecting the employee’s claim that he or she needs FFCRA leave to care for his/her child.
Similarly, FFCRA does not prohibit an employer from asking questions or looking at any documentation the employee voluntarily offers in support of his or her leave request. The DOL’s guidelines look to whether it is “more likely than not” that the child would have attended camp but for the COVID-19 outbreak, and that ultimately involves making a good faith judgment call. For example, the fact that an application was submitted and/or a deposit was paid before the camp made the decision not to open for the season shows a plan to attend. Evidence that the child attended the camp the prior year might also establish that there was a plan to send the child to that camp this year, even if an application or deposit was not submitted. This is provided the child is and was qualified to attend. If the camp in question is for kids ages 10-12, a 13 year-old child would not be qualified to attend this year, notwithstanding the fact that he attended in 2019. In a similar vein, parents of a 10 year-old could not credibly claim she planned to go to the camp and attended the prior year (when she was only 9). Lastly, the mere fact that an employee was “thinking about” sending their child to camp or presents a brochure from the camp is insufficient to support a request for FFCRA leave; there must be some evidence that there was an intent to actually enroll and attend.
Failure to provide leave to an employee qualified to take FFCRA leave can result in significant penalties, including without limitation liquidated damages and attorneys’ fees. Accordingly, it is important that employers carefully evaluate all leave requests and consult with counsel before making a decision to deny any such requests.
Kenneth R. Tuch, Esq. and Laurence I. Cohen, Esq. are partners with Tuch & Cohen LLP, with offices located at 1025 Old Country Road, Suite 411, Westbury, New York 11590. The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters, and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.