DOL Issues More Guidance on School Closure Issues Related to FFCRA Paid Leave and FLSA Child Labor Limitations
As employers know, Congress recently enacted the Families First Coronavirus Response Act (FFCRA), which requires most public employers and private sector employers with less than 500 employees to provide paid leave to employees who cannot work due to COVID-19 reasons, including the fact that their child’s school is closed because of COVID-19. Prior to summer, this paid leave entitlement was fairly easy to understand and apply. However, now that summer is upon us and schools are closed for summer (not just because of COVID-19), employers are confused as to whether they still have to provide paid FFCRA leave to employees who cannot work because their summer day care plans have been canceled due to COVID-19. Today, the federal Department of Labor (DOL) issued a field assistance bulletin providing guidance to employers on this specific issue. The DOL also issued a second bulletin providing guidance on the effect of school closures on child labor limitations under the Fair Labor Standards Act (FLSA). The FLSA places limits on the hours minors may work. Those limits vary depending on whether or not school is in session. The widespread school closures triggered by COVID-19 have led to confusion over what it means for school to be “in session.” Is a school “in session” if it is physically closed but nonetheless continuing virtual instruction? Today’s DOL bulletins answer this question as well.
School Closures During Summer and Eligibility for Paid FFCRA Leave
The FFCRA provides employees with paid leave if they cannot work because they need to care for a child whose school is closed due to COVID-19. It is summer now and most schools are closed, not because of COVID-19 but because they regularly are closed in the summer months. Nonetheless, many parents who rely on summer camps or similar programs to provide day care for their children during summer are still unable to work because many of those programs have been cancelled due to COVID-19 restrictions. Employers are reminded that the FFCRA’s paid leave provisions apply to employees who cannot work because they need to care for a child whose school or place of care is closed due to COVID-19. Thus, even though schools are currently closed due to summer vacation (not COVID-19), employees still may be eligible to paid FFCRA leave if their summer day care plans for their child have fallen through due to COVID-19. This raises questions concerning how an employee can establish that their child’s summer day care plan fell through due to COVID-19, and whether there is any way for employers to guard against possible abuse by employees who just want time off during the summer off with pay. The answers aren’t great. The short answer is that an employee can establish eligibility for “place of care closure leave” through many means. This may include proof of enrollment in a summer camp or day care, along with proof of cancellation, but this level of proof is not absolutely necessary. Given that COVID-related closures started in March, enrollment for various camps and related activities may not have even been completed prior to summer starting, so an employee legitimately may not have proof of enrollment. In such circumstances, the DOL suggests that it may be enough for an employee to indicate intention to enroll a child in summer care, which an employee may (but is not required to) substantiate with proof of enrollment in the same programs in prior summers. In simplest terms, just about anything an employee provides in terms of substantiating that their summer day care plans fell through likely will suffice.
FLSA Child Labor Limitations and Meaning of School Being “In Session”
As noted above, the FLSA places restrictions on the number of hours certain minors (especially 14 and 15-year olds) may work. Those hours caps vary depending on whether school is in session. The COVID pandemic has led to a new type of “virtual” distance learning that many schools have implemented in lieu of complete cessation of instruction. However, most schools have been physically closed since March. In the world of virtual learning, what does it mean for a school to be “in session?” The DOL’s bulletin provides guidance on this issue, generally explaining that school is “in session” in any week in which the school requires a child to attend school, either physically or through virtual or distance learning.
Employers covered by the FFCRA, and those that employ minors, should review today’s DOL bulletins to ensure they are in compliance.