Legal Update - More Department of Labor Guidance for Employees with Children
May 26, 2020
Summer is finally here! What about your employees that are unable to work because they need to care for their children this summer when their child care plans have changed? The U.S. Department of Labor (“the DOL”) recently released more guidance on Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave Expansion Act leave (E-FMLA) related to employees who are unable to work. See new FAQ #93 at:
What leave is available? First and foremost, it remains true that these leaves can be used if the employee’s childcare is “unavailable” due to the COVID-19 pandemic. Remember, the DOL defines a “child care provider” broadly as “someone who cares for your child,” including people who are paid to watch your children and “individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles or neighbors.” See FAQ #68. So that means these leaves can be used if an employee’s children are not able to go to their summer camp, or recreational center programs for reasons related to the pandemic. But employees may NOT take the leaves simply because school closed for the summer.
What information can an employer ask about this leave? The practical issue is what type of information can the employer require to apply the leaves in a summer camp/program scenario? Does the employee need to establish their children were enrolled already and the camp/program closed? What if they never had a chance to enroll due to COVID-19? What if they use the camp/program every summer, but they aren’t required to pre-enroll and/or they didn’t enroll this year based on the uncertainty of the public health emergency?
Bottom line: employers should not add extra certification burdens to employees related to summer camps/programs. Instead, the employee must provide the following information: their name, the dates for which the employee requests the leave; the reason for the leave; and a statement that the employee is unable to work because of the above reason; plus the name of the employee’s child/ren; the name of the…place of care or child care provider that has closed or become unavailable; and a statement that no other suitable person is available to care for your child/ren. See FAQ #16. And while some employers find these minimal reporting requirements frustrating, they should remember the overarching principles at play under the Families First Coronavirus Act: to provide working parents a safety net if they cannot work due to loss of childcare related to the pandemic.
- Amy Reasner and Wilford Stone