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Updated Guidance Regarding Summer Camps And Summer Programs Under FFCRA Paid Leave

We previously issued a legal bulletin addressing how summer vacation affects the Families First Coronavirus Response Act (FFCRA).

Some changes were recently made when the U.S. Department of Labor, Wage & Hour Division, rolled out two new COVID-19 guidance letters on June 26, 2020. Such changes include expanding  the definition of when school is “in session” and the criteria for when employees may take leave under the FFCRA.

New Definition for when School is “In Session”

1. FIELD ASSISTANCE BULLETIN No. 2020-3 addresses when a school is in session under rules limiting the number and length of hours minors can work under the child labor laws. 

Generally, “[s]ummer school sessions, held in addition to the regularly scheduled school year, are considered to be outside of school hours.” 29 C.F.R. § 570.35(b). 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 and considered “school hours.” Thus, school would be considered to be “in session” when the school district requires all students to receive instruction.

2. FIELD ASSISTANCE BULLETIN No. 2020-4 provides that 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 in response to COVID-19 is subject to the same requirements as that of when a school or day care center closes. 

Essentially, the new analysis is whether there is evidence of a plan for the child to attend a camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19. But a parent’s mere interest in a camp or program is generally not enough.

This new qualification for leave under the FFCRA may prove to be quite problematic for employers who are now required to pay their employees to take leave under the FFCRA for a multitude of possible circumstances that previously did not exist.  

For example, under the new guidance, an employee could:

  1. show that he or she planned to send his or her child to a summer camp or program, or 

  2. show that even though the employee had no such plan at the time the summer camp or program closed due to COVID-19, his or her child would have attended the camp or program had it not closed.  

Such circumstances present a “one-size fits-all” rule that could easily spark an alarming trend of employees who are currently working to exit the workforce and take time off under the FFCRA. Please see the Field Assistance Bulletin at the following link:

Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.


This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC

For more COVID-19 Legal Updates, please visit our resource page.


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