As states ease social-distancing measures, workplaces open back up, and schools end their remote learning for summer vacations, we have been receiving questions about childcare-related leaves available under the Families First Coronavirus Response Act (“FFCRA”) and whether it is available for their employees.
A FFCRA PRIMER
FFCRA childcare-related leave is available to individuals who are unable to work or telework if they need to care for their child because:
- the child’s school or place of care is closed, or
- the child’s care provider is unavailable, due to COVID-19-related reasons
According to the USDOL, “generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.”
FFCRA FAQs IN THE TIME OF COVID-19
My employee is requesting FFCRA childcare-related leave because their child’s school is closed for the summer. Are they eligible for leave?
- Employers should inquire into what arrangements the employee has used for childcare in previous summers. Because schools are now going to be closed for summer vacation, that is, not for COVID-19 reasons, this will no longer be enough to sustain a request for FFCRA childcare-related leave.
- However, if the employee previously had relied for childcare on a summer camp that is not operating this year as a result of COVID-19, their usual provider would be considered unavailable and an employer should consider this as a FFCRA childcare-leave request.
My employee’s usual childcare provider is open but operating at a reduced capacity. If my employee is unable to secure space with that provider, do they still qualify for FFCRA leave?
- If the employee’s “usual childcare provider” is open but does not have space available for the employee’s child as a result of COVID-19 reduced capacity, employers can consider a request for FFCRA childcare-related leave for the employee.
- Employers should consider whether there are flexible arrangements that could enable an employee to telework or whether an intermittent FFCRA childcare-related leave might be appropriate.
My employee’s usual child care provider is open and has space available, but the employee does not want to send their child back. How can I know that and can I request documentation from the employee?
- Employers should request and maintain documentation to support all FFCRA childcare-related leave requests. This documentation should include:
- the employee’s name
- the dates they are requesting leave
- the reason for the leave
- a statement that they are unable to work because of that reason
- the name of their child
- the name of the place of care or childcare provider that is closed or unavailable; and
- a statement that no other suitable person is available to care for their child.
- If the employee is turning down available childcare from their usual childcare provider and does not have other available childcare options, their leave would not be covered under FFCRA.
- Contact Heather Adelman at firstname.lastname@example.org if you need assistance preparing a FFCRA-compliant form for employees requesting leave.
My employee has older children in their house. Can I request that the older children care for the younger children?
- It is up to the employee to determine whether their older children can be considered a “suitable person” to care for their child.
- Again, an employer can inquire regarding the arrangements the employee has used in prior summers for the children, but should avoid making assumptions about the employee’s circumstances.
Each individual situation should be assessed based on the employee’s particular circumstances. If you have questions regarding a unique or difficult FFCRA related situation, please contact us or the HDRB&B attorney with who you normally work.
Interfering or otherwise failing to provide FFCRA childcare-related leaves can subject an employer to liability, though the specific consequences are not yet clear.