SUMMERTIME BRINGS NEW ISSUES WITH FAMILIES FIRST CORONAVIRUS RESPONSE ACT
Among other things, the Families First Coronavirus Response Act (FFCRA) requires employers to provide paid time off to their employees if the employee needs to stay home to care for their son or daughter due to a school or day care closure. However, as businesses are starting to re-open and schools are ending the spring semester early, some employees are questioning whether or not they are still entitled to paid leave under the FFCRA if they need to stay home to care for their child. The FFCRA specifically mentions school and day care closures, however, many working parents use summer camps to care for their children during school breaks and the language of the FFCRA is silent. Due to the COVID-19 pandemic, many children’s summer camps have been cancelled and working parents are looking to their employers to accommodate the employee’s need to stay home to care for their child over the summer. While the FFCRA did not specifically address summer camps, new guidance issued by the Department of Labor indicates that if an employee is required to stay home to care for children during the summer due to a summer camp being unavailable, the employee may request paid time off under the FFCRA. The employee would be required to provide documentation showing that their intended childcare for the summer is unavailable. Either a message from the summer camp provider or a notice posted on the summer camp’s website would be sufficient.
Since many summer camps and other traditional summer child care options are likely unavailable this summer, some parents may be looking to hire a nanny to provide full-time childcare for the summer. This raises the question of whether or not the parents, as the employer of the nanny, are required to provide the nanny with paid leave under the FFCRA. Since the FFCRA applies to private employers with as little as one employee, the FFCRA could apply in certain situations. The Department of Labor guidance indicates that the answer to this question depends on the relationship between the nanny and the family. If the nanny is dependent on the family as their full-time job, with no other clients, then the parent, as employer, does need to provide paid leave under the FFCRA, regardless of whether the parent is considered an employer for federal tax purposes. On the other hand, if the nanny has other households that he or she is also serving, then the nanny is in business for themselves and the employer family does not need to provide paid time off under the FFCRA.