On June 26, 2020, the Department of Labor (DOL) Wage and Hour Division Head, Cheryl Stanton, issued two guidance bulletins relating to the impact of COVID-19. The first bulletin, Field Assistance Bulletin Number 2020-3, relates to the impact of COVID-19 on child labor laws, and the second bulletin, Field Assistance Bulletin Number 2020-4, provides guidance on child care leave pursuant to the Families First Coronavirus Response Act (FFCRA).

Virtual Learning Impacts Child Labor Laws

The number of hours an employer can employ a minor in nonagricultural and agricultural employment generally depends on whether school is considered “in session.” For example, with limited exceptions, during any week in which school is in session, minors aged 14 and 15 are permitted to work in nonagricultural employment “only outside of school hours and may not work more than 3 hours in any school day, including Fridays, not more than 8 hours in any non-school day, and may not work more than 18 hours total in the week.”

Field Assistance Bulletin Number 2020-3 clarifies what it means for a school to be “in session” even though it is physically closed in response to the COVID-19 pandemic. For 14- and 15- year-olds in nonagricultural employment, school is considered “in session” during any week in which the school district where the minor resides requires students to attend classes “either physically or through virtual or distance learning.” Thus, even if a school is physically closed due to COVID-19, a school may be “in session” if the district requires all students to continue virtual or distance learning for at least one day or during any part of one day during the week in question. The bulletin’s analysis is similar for agricultural employment of minors: “If a school district is continuing to require instruction via virtual or distance learning, this is an indication that school is in session; if the school district is not requiring distance learning, in most instances school will not be in session.” The DOL bulletin also addresses the impact of summer school on whether school is considered “in session” for child labor laws. Summer school is generally “in session” if the school district makes summer attendance mandatory. The bulletin thus indicates that “whether school is ‘in session’ for a child who resides in a public school district that has physically closed schools will depend on the specific circumstances of that school district.”

Businesses who employ minors should review the DOL guidance and make sure they understand whether the minor’s school is considered “in session” even if it is physically closed so they do not run afoul of the laws regulating hours of work.

DOL Guidance Includes COVID-19-Ruined Summer Camp Plans as Reason for FFCRA Leave

As discussed in more detail here, the FFCRA provides eligible employees with up to 80 hours of paid sick leave for reasons related to COVID-19 and up to 12 weeks of expanded family and medical leave when an employee cannot work or telework due to the need to care for a child whose school or place of care has closed, or because their care provider is unavailable. Field Assistance Bulletin Number 2020-4 addresses whether FFCRA leave should be granted when an employee needs to care for their child due to the closure of a summer camp, summer enrichment program or other summer program.

In addressing this question, the bulletin clarifies that summer camps and summer enrichment programs qualify as “places of care” under the FFCRA. The bulletin also makes clear that “[t]he expectation that employees take FFCRA leave based on planned summer enrollments is not different from the closing of other places of care, such as a day care center.”

When an employee seeks leave because of the closure of a summer camp or summer program, the DOL confirmed that the employee must provide the same information as the FFCRA requires when the child’s place of care is closed. Thus, the employee would need to provide, among other things, the name of the child, the name of the summer camp or program that would have been the place of care had it not closed, and a statement that there is no other “suitable person available to care for the child.” An employee can satisfy the requirement of naming a summer camp or program if, for example, “the child 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.” While the bulletin explains that other circumstances may also demonstrate enrollment or planned enrollment, “a parent’s mere interest in a camp or program is generally not enough.”

If an employer denies FFCRA leave due to the closing of a summer camp or program, the bulletin explains that Wage and Hour Division investigators should look at whether there is evidence the employee (1) had a plan to send their child to summer camp or a summer program or (2) that, absent a plan at the time of summer camp or program closure, their child would have attended the camp or program had it not closed due to COVID-19. Affirmative steps short of actual enrollment, such as submission of an application or a deposit before the camp’s closure, may also be sufficient evidence of a plan. The DOL’s bulletin makes clear there is not a “one-size-fits-all rule” and other evidence may demonstrate a child was enrolled or planned to be enrolled in a camp or program.

In light of the DOL’s guidance, employers should review their FFCRA policies to address requests pertaining to summer camp or summer program closures and should continue monitoring federal, state, and local guidelines as the COVID-19 pandemic continues.