School might be out for summer, but updated guidance from the Department of Labor (“DOL”) indicates that the closure of summer camps may entitle eligible employees to leave under the Families First Coronavirus Response Act (“FFCRA”).

The FFCRA requires that covered employers provide eligible employees with up to 12 weeks of paid leave for employees who are unable to work or telework as result of the closure of their children’s place of care. Nelson Mullins’ detailed summary of the DOL’s regulations interpreting the FFCRA is available here.

The closure of summer schools, summer camps and other summer enrichment programs may now entitle an eligible employee to FFCRA paid leave. While many of these institutions were not open when the FFCRA was first enacted and therefore did not fit the definition of a “place of care,” the DOL indicated that so long as an employee can demonstrate that (1) there was a plan to send the child to a summer camp or program or (2) that even though the employee had no such plan at the time, his or her child would have nevertheless attended the camp or program had it not closed as a result of COVID-19, they are entitled to leave under the FFCRA. Ultimately, it must be more likely than not that the child would have attended the camp prior to its closure.

As a result, to qualify for the leave, an employee must not only submit the general FFCRA leave request information but must additionally establish that the child applied to or was enrolled in the summer program before it was closed as a result of COVID-19, or that the child previously attended the program in past summers and would be eligible to attend the program this year. A summer camp may qualify as “closed” for the purposes of the FFCRA if it instead operates at a reduced capacity and prohibits some children from enrolling who would have done so under normal circumstances. Given the variety of circumstances potentially at issue here, the DOL cautioned against utilizing a “one-size-fits-all” rule or approach here.

Because the employer is making the determination as to whether or not to grant FFCRA leave, employers should proceed cautiously before denying FFCRA leave based on summer camp closures. The DOL has stepped up enforcement actions related to FFCRA violations, thus when in doubt, companies should consult counsel if there is any question as to FFCRA leave eligibility.