Summer is upon us and businesses are slowly reopening across the country in the wake of the COVID-19 outbreak. But employers and employees are now faced with a new challenge.
Employees' have potential entitlement to paid time off to provide childcare now that businesses are reopening, but many daycare centers, summer camps and other elective summer programs remain unavailable. Prior to summer, employers had a clear path via the expanded FMLA paid leave law created by the Families First Coronavirus Response Act (FFCRA).
Now that schools are closing for summer, small business clients may face added complications when employees request paid leave to care for children who might be home for summer even in the absence of COVID-19. Employers should address these requests carefully, paying close attention to current and future DOL guidance on the subject.
FFCRA Paid Leave Law
Parents who have now spent months grappling with the need to care for (and even providing schooling for) their children while juggling telework or the financial stress of unemployment may now be faced with a new struggle: balancing return-to-work with childcare needs in an environment where options may remain severely limited.
Under the FFCRA, employees were entitled to receive partial wage payments in order to care for children whose schools were closed, or regular childcare providers were unavailable, due to COVID-19. To qualify the employee must actually be providing care for the child and must certify that no other suitable person, including a co-parent or the usual care provider, is available.
The additional paid sick leave is capped at two-thirds of the employee's pay rate, subject to a maximum $200 cap per day or $2,000 total if the employee is caring for a child whose school or usual child care provider is unavailable because of a COVID-19-related reason—the most prominent of which is that schools have been closed by government orders across the country. These payments are available for a total of 12 weeks—two weeks under the expanded paid sick leave provision and 10 weeks under the new FMLA rules.
DOL Guidance on Summer FFCRA Leave
The initial DOL guidance provides some clarity on whether parents are entitled to take FFCRA leave this summer. According to the guidance, the fact that schools are closing for the summer does not provide a valid reason for paid FFCRA leave. On the other hand, if the child's usual summertime childcare provider is unavailable, the employee may be eligible for paid leave. This includes summer camps and similar activities that parents typically rely upon for childcare in the summer months.
