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Distance learning/homeschooling is finally starting to wrap-up for millions of students across America, a perhaps welcomed end for many, and summer vacation will soon begin. Your employees may have questions as to whether they qualify for child care leave under the expanded FMLA (“EFMLEA”), which many employees used over the last few months to receive partial compensation while they were away from work to care for their children. Now, employers with fewer than 500 employees must take note of additional guidance recently published concerning qualification for childcare leave.

Recently, the Department of Labor (“DOL”) provided guidance on this question:

"Can employees take paid leave to care for a child under the EFMLEA or the paid sick leave under the child care provisions of Emergency Paid Sick Leave Act (“EPSLA”) when school is closed for summer vacation?"

The DOL stated no. Paid leave under EFMLEA and EPSLA are not available to provide child care “if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer - a camp or other programs in which the employee’s child is enrolled - is closed or unavailable for a COVID-19 related reason.” Meaning, an employee who requests leave because schools or childcare providers are closing for the summer, is not eligible for the emergency childcare leave. 

If you have any employees who are using the paid childcare leave because they have been unable to work due to homeschooling or home childcare requirements, the employer has been receiving tax credits for those payments. However, once school is no longer in session, the paid childcare leave is no longer applicable, and the employer will not be entitled to credits for any payments. For this reason, the employer needs to stop the childcare payments.

Please also keep this in mind for any childcare leave requests over the summer. A school or daycare that is closed for summer vacation does not qualify for COVID-19 emergency leave. However, employees may still be eligible for childcare leave over the summer if a child’s normal, summer childcare provider is closed for a COVID-19 related reason, such as summer camp closures. 

We recommend that all employers review this issue with any employees who are currently out on emergency childcare leave. As always, please do not hesitate to contact us with any additional questions or concerns.

Bryan Meek is a member of Brennan, Manna & Diamond’s Labor & Employment team and is available to assist you with responding to requests for information and/or appealing unfavorable unemployment decisions. Bryan can be reached at 330.253.5586, or bmeek@bmdllc.com.