New DOL Guidance Explains the Documentation Needed for FFCRA Leave Due to Summer Childcare and Camp Closures

New DOL Guidance Explains the Documentation Needed for FFCRA Leave Due to Summer Childcare and Camp Closures

  • On July 8, 2020

Summertime for working parents is always a challenge, but this year, with many summer camp and child care options closed, the struggle is unprecedented. As a result, many businesses that are subject to the Families First Coronavirus Response Act’s (FFCRA) paid sick leave, and expanded Family Medical Leave Act (FMLA) requirements may wonder if employees can use FFCRA leave to take care of their children over the next few months. The answer is, quite possibly, but not always. To help clear up any confusion, the Department of Labor (DOL) recently issued new FFCRA leave guidance about how employees and employers may demonstrate appropriate use of new paid leave options and tax credits for COVID-19-related summer child care needs.

The original FFCRA paid leave FAQ guidance is unequivocal that school merely being out for the summer does not qualify a parent to take FFCRA paid leave. However, if the employee can document that their preexisting summer childcare arrangements are unavailable, they may be eligible to take up to two weeks of paid sick leave and an additional ten weeks of FFCRA childcare leave. The employer would then be eligible for a paid leave tax credit to cover their paid leave wages and related health insurance costs.

If an employee requests such leave, just as with other leave requests, then documentation is required.  Employers must ask employees that request FFCRA for childcare reasons, including summer childcare, for:

  • Employee name;
  • Requested leave dates;
  • The reason for leave;
  • A statement that the employee is unable to work, including utilizing telework, for such reason;
  • The name and ages of the child(ren);
  • The name of the school, place of care, or child care provider that is closed or unavailable; and
  • A statement that no other person will be providing care for the child during the period for which the employee is receiving family medical leave.

If the need is to provide care for a child older than fourteen during daylight hours, a statement that exceptional circumstances exist requiring the employee to provide care is needed.

The new DOL guidance addresses how employees might appropriately document the unavailability of a summer camp or summer childcare program due to COVID-19. Many of them closed before the summer started. Generally, a parent’s mere interest in a camp or program that closed is not enough documentation to justify the FFCRA leave. However, some circumstances indicate a child would have attended, had the program not closed in response to COVID-19.  Appropriate evidence of this includes:

  • Records that the child(ren) applied to, or was enrolled in the summer camp or program before it closed;
  • Evidence the child(ren) went to the camp or program in prior summers and was eligible to participate again; or
  • Proof of submission of a deposit or payment of tuition.

The guidance also explains there could be circumstances where such records could be hard to produce. In those instances, employers, and ultimately the DOL and IRS will have to consider it on a case-by-case basis:

“A child who, for example, only recently met the age requirement for a summer camp could not have attended the camp in prior years. The same would be true of a child who recently moved from an area not serviced by the summer camp that the child planned to attend this summer or of a child whose parents had not yet made summer arrangements at the outset of the COVID-19 pandemic and delayed doing so due to uncertainty surrounding summer camps’ and programs’ operations. In such circumstances, there may nonetheless be indicators that a particular camp or program would have been the child’s place of care this summer, for example, by being accepted to a waitlist pending the reopening of the camp or program or the reopening of its registration process.”