Rex P. Fennessey

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NEW DOL GUIDANCE ON SCHOOL AND SUMMER PROGRAM CLOSURES UNDER THE FLSA & FFCRA

On June 26, 2020 the United States Department of Labor issued two Field Assistance Bulletins (FAB) relating to school closures, child labor requirements and Families First Coronavirus Response Act (FFCRA) leave.  Field Assistance Bulletins are not regulations that have the force of law; rather, they are guidance for Department of Labor officials.  However, they give employers an insight as to how the Department will enforce the Fair Labor Standards Act (FLSA) and its regulations, and are sometimes referenced by courts in determining what the FLSA’s statute and regulations mean. Employers should be aware of these new interpretations when making employment decisions in the coming months.

FAB2020-3 – Child Labor Laws and When School is “In Session”

One bulletin, FAB2020-3, addresses when schools that are physically closed are considered “in session” for the purpose of the FLSA’s child labor laws.  The FLSA limits employment of 14 and 15 year olds depending on when “school is in session.”  For instance, employers cannot employ 14 or 15 year olds during school hours, and must limit employment to not more than 18 hours in a week in which school is in session and not more than 3 hours in any day when school is in session.

The COVID-19 pandemic saw most schools physically closed earlier this year, but many districts continued remote or virtual learning online; and many are considering remote or virtual learning this fall. One question that this unique situation presents is when physically-closed schools that require such remote or virtual learning are “in session” for purposes of the FLSA’s restriction on youth employment.  The Department’s new FAB states that, for enforcement purposes, for 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.  Thus, the FAB states that when a district which has physically closed schools but requires all students to continue instruction through virtual or distance learning “for at least one day or during any part of one day, school is in session in the school district during that day and that week.”  The FAB reiterates that “summer school sessions, held in addition to the regularly scheduled school year, are considered to be outside of school hours.”  However, mandatory summer sessions designed to make up for instruction time lost due to COVID-19 are considered extensions of its regular schedule and, therefore, would be considered “school hours,” and school would be considered “in session” during any day and during any week in which the school district requires all students to receive such instruction.

FAB2020-4 – FFCRA Leave for Closed Summer Camps and Programs

The second bulletin, FAB2020-4, addresses leave eligibility under the FFCRA for employees whose children’s summer camps or summer programs are cancelled due to COVID-19.  As a refresher, the FFCRA requires certain employers to provide up to two weeks of paid sick leave and up to 12 weeks of paid expanded family and medical leave to employees unable to work or telework due to a need to care for a child because the child’s school or place of care is closed due to COVID-19 related reasons.  This provision of the FFCRA was designed to address the lack of childcare for employees whose children’s school had closed due to COVID-19.  But what about a lack of child care when school would not have been in session?

Although the FAB does not address the issue in detail, it notes that summer school or other academic work during the summer “required and provided by the school attended by the child during the academic year is treated as the child’s school for purposes of the FFCRA.”  This footnote suggests that employees whose children are required to attend summer school provided by their district may qualify for FFCRA leave discussed above.

On the issue of summer camps or programs, the FAB states these can qualify as places of care for employees’ children under the FFCRA even if they were not operating when the DOL’s regulations took effect in April, 2020.  It also notes that a summer camp or program might also be considered closed or unavailable if they begin or continue operations at a reduced capacity.  But the primary issue addressed by the FAB is how to determine whether the employee intended the summer program or camp to be a place of care for the child.

The FAB states that the question is whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons.  Unfortunately, the FAB gives little firm guidance for investigators, and consequently little for employers to draw from.  The FAB indicates that “a parent’s mere interest in a camp or program generally is not enough” to demonstrate it would have been a place of care.  However, the FAB indicates that the following may indicate the requisite intent:

  • Enrollment in the summer camp or program prior to its closure;
  • Affirmative steps short of actual enrollment such as submission of an application or deposit for the camp or program;
  • Prior attendance at the camp or program in one or more of the past two years (so long as the child would continue to be eligible);

The FAB ultimately states that there are a “multitude of possible circumstances under which an employee may establish” the requisite intent to use the summer camp or program as a place of care for their child.  Thus, employers should carefully consider a variety of factors when making a decision as to whether to grant an employee FFCRA leave based on a claimed lack of child care for a closed summer camp or program.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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