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DOL guidance clarifies FFCRA leave eligibility for kid’s camp closures; when school is ‘in session’ for FLSA child labor rules

By Joy P. Waltemath, J.D.

The FFCRA allows parents to take leave if their children’s summer camp plans are closed due to the coronavirus. A new field assistance bulletin explains how to determine if camp is “closed.”

With school and summer activity schedules greatly altered as America continues to re-open in the wake of the coronavirus, the Department of Labor’s Wage and Hour Division on June 26 issued two Field Assistance Bulletins (FABs) to address school and camp or summer program closures—and what they mean. The FABs address:

  • How to determine paid sick or expanded family and medical leave eligibility under the Families First Coronavirus Response Act (FFCRA) based on the closure of summer camps, summer enrichment programs, or other summer programs; and
  • How to determine when schools that are physically closed for coronavirus-related reasons are considered “in session” for purposes of federal child labor requirements.

When are summer camps or other programs “closed” for leave purposes? Field Assistance Bulletin 2020-4 provides guidance on when an employee qualifies to take paid leave under the FFCRA to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program for coronavirus-related reasons.

Many summer camps and programs were closed in response to COVID-19 before any children began to attend and, in some cases, before they began to enroll. Thus, unlike schools and day care centers, such camps and programs therefore would not have been places of care of any child at the time they closed. Accordingly, determining whether a camp or program is the place of care of an employee’s child may be confusing.

What would have been the plan. Generally, an employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program should provide the name of the child, the name of the specific summer camp or program that would have been the place of care for the child had it not closed, and a statement that no other suitable person is available to care for the child (29 C.F.R. § 826.100(e)(2)). This requirement to name a specific summer camp or program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again, among other potential circumstances.

A child who, for example, only recently met the age requirement for a summer camp could not have attended the camp in prior years. The same would be true of a child who recently moved from an area not serviced by the summer camp that the child planned to attend this summer, or of a child whose parents had not yet made summer arrangements at the outset of the COVID-19 pandemic and delayed doing so due to uncertainty surrounding summer camps’ and programs’ operations. In such circumstances, there may nonetheless be indicators that a particular camp or program would have been the child’s place of care this summer, for example, by being accepted to a waitlist pending the reopening of the camp or program or the reopening of its registration process.

When are schools “in session” for child labor purposes? Field Assistance Bulletin 2020-3 clarifies how the FLSA’s child labor provisions apply to the employment of children when schools are in session yet physically closed due to the coronavirus pandemic. In general, school is in session if the local public school district requires students to participate in virtual or distance learning, even if schools in the district are physically closed.

The Department’s Child Labor Regulation 3 sets forth employment standards for 14- and 15-year-olds in nonagricultural occupations, including limitations on hours of employment (29 C.F.R. § 570.35). The precise limitations depend on whether school is “in session.” School is considered to be “in session” during any week in which the public school district in which the minor resides requires students to attend school for at least one day or partial day and during any day in which such attendance is required (§ 570.35(b)).

Many public school districts have physically closed schools in response to COVID-19 and no longer require students to physically attend school. At the same time, many such districts continue to require students to receive at least some instruction via virtual or distance learning. It may be confusing to determine when school is in session for the purpose of agricultural and nonagricultural employment under such circumstances.

Thus, for purposes of nonagricultural employment, school is considered to be in session during any week in which the public school district in which the child resides requires its students to attend school, either physically or through virtual or distance learning. Conversely, if a public school district physically closes schools and does not require all students to receive instruction through virtual or distance learning, school is not in session.

Summer school sessions. Generally, “[s]ummer school sessions, held in addition to the regularly scheduled school year, are considered to be outside of school hours.” (§ 570.35(b) (emphasis in original). However, some school districts may be considering mandatory instruction for all students over the summer to make up for instruction time lost due to COVID-19. If a public school district does so, such mandatory summer sessions should be viewed as extensions of its regular schedule.

Transition from school to summer childcare. “As workers and employers deal with the effects of the coronavirus pandemic in the workplace, the U.S. Department of Labor’s priorities include ensuring our response provides the support and information they need,” said Wage and Hour Division Administrator Cheryl Stanton. “The guidance provided to our field offices in these bulletins, which we are sharing publicly, clarifies some unique issues surrounding the reality of distance and virtual learning and the transition from school to summer childcare. We will continue to provide guidance as new situations and issues arise.”