Key to remember: The fact that school is out for the summer can have an impact on an employee’s use of leave under the Families First Coronavirus Response Act.

Applies to: All public employers and private employers with fewer than 500 employees in the U.S.

Impact to customers: Now that school is out, employers need to understand an employee’s leave would qualify for FFCRA protections.

Possible impact to JJK products/services: This article will be in the FMLA Manager.

The freedom cry of many a child that school is out is often heard this time of year. As such, employees (and employers) may be wondering whether and how leave under the expanded family and medical leave (EFML) provisions of the Families First Coronavirus Response Act (FFCRA) applies.

Stay-at-home orders in March sent many students home early as schools and daycare facilities closed. Back then, employees needed to take on the childcare roles, often resulting in the need to take a break from working. This was true even if employees were working from home, as any parent of a young child would agree, children demand a lot of attention. Trying to tackle professional tasks while simultaneously providing childcare demands simply isn’t feasible.

Enter the FFCRA, which entitled employees to take job-protected paid leave if schools or other childcare was no longer available due to COVID-19-related reasons.

Now, however, stay-at-home orders are lifting, and schools are closed not due to COVID-19, but because it’s time for summer vacation. Paid sick leave and emergency family and medical leave are not available to employees if the school or childcare provider is closed for summer vacation, or any other reason that is not related to COVID-19. If, however, the child’s care provider during the summer — a camp or other programs in which the child is enrolled — is closed or unavailable for a COVID-19 related reason, the employee may be able to take FFCRA leave.

Therefore, you may have employees who have been taking FFCRA leave for childcare issues related to COVID-19, but now those reasons have changed. Under normal conditions, employees would likely need to find childcare during the summer months. If the school/daycare is unavailable for reasons other than COVID-19, the reason would not qualify for FFCRA leave. Other reasons that are not COVID-19 related include helping children catch up with schoolwork, childcare is expensive.

When it comes to documentation regarding the unavailability of childcare, you may (and should) could request the following:

• The name of the child; 
• The name of the school, place of care, or childcare provider that has closed or become unavailable; 
• A statement that no other suitable person is available to care for the child; and 
• With respect to the employee’s inability to work or telework because of a need to provide care for a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide care. 

You may ask an employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, but you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.

You may now return to your kiddie pools and backyard watermelon-seed-spitting contests!