Under the Families First Coronavirus Response Act (“FFCRA”) employees are entitled to paid leave if their child’s school is closed because of COVID-19. The exact language of the regulation is:
The Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19 ….
29 C.F.R. § 826.20(a)(v)(emphasis added). Well, what happens during a school’s regularly-scheduled Summer Break?
Employers might be tempted to deny paid leave because schools are no longer closed “for reasons related to COVID-19.” I strongly recommend you do not take that approach. The exception for child care is more expansive than just closure of a school. Instead, employees are also entitled to paid leave if the child’s “Place of Care” or “Child Care Provider” is unavailable. The definitions of those terms are expansive.
The term “Place of Care” means a physical location in which care is provided for the Employee’s child while the Employee works for the Employer. 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.
29 C.F.R. § 826.10(a)(emphasis added).
So, if an employee would normally send their child somewhere for care during the Summer, and that place is closed because of COVID-19 concerns, they are still entitled to paid leave.
Plenty of employees also rely upon friends and family to provide child care during the Summer. Those friends and family fall within the definition of “Child Care Provider”:
The term “Child Care Provider” means a provider who receives compensation for providing child care services on a regular basis. The term includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under State law …. Under the Families First Coronavirus Response Act (FFCRA), the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.
29 C.F.R. § 826.10(a)(emphasis added). So, if an employee would normally rely upon a family member or friend for child care during the Summer, but that person is unavailable because of COVID-19, the employee is still entitled to paid leave.
The best approach to resolving Summer Break issues is to have a discussion with your employee. How do you normally care for your child during the Summer? What is different this year from previous years? If the employee provides a COVID-19 related explanation for lack of child care, they are probably entitled to paid leave. In that instance, employers have obligations under the FFCRA to document the reasons for Summer leave.
Here is link to FFCRA regulations: FFCRA Regs. If you have further questions on child care and COVID-19 paid leave, contact your attorney.