By Rob Gilmore & Janet Stewart
As the novel coronavirus (COVID-19) continues to spread and impact everyday life during the summer months, the U.S. Department of Labor (DOL) has recently issued new guidance on certain child labor laws, as well as the availability of leave for employees whose summer childcare has been canceled due to the global pandemic. Ultimately, this recent guidance further endeavors to answer certain questions for employers and employees which have naturally arisen from the new and changing landscape presented by COVID-19.
DOL Guidance on Child Labor Laws and COVID-19
As a general matter, child labor laws and regulations are in place in order to protect the welfare and safety of young Americans in the workforce and ensure that said employment does not jeopardize the education of those young workers. As a result, when employers are permitted to employ minors—specifically, minors 14 years of age and older—the particular limitations placed on the employment, including how many and what hours can be worked, vary depending on whether school is considered to be “in session” or not.
In particular, in the context of non-agricultural employment, when school is “in session,” the child labor laws and regulations provide that minors ages 14 and 15 may only work outside of school hours, are not permitted to work more than three hours in a school day (including Fridays) or more than eight hours in a non-school day, and cannot work more than 18 hours in a week. Similarly, in the context of agricultural employment, minors ages 14 and older may only work outside of the school hours in the public school district where they reside (and thus, in effect, outside the hours when their school is “in session”).
Typically, the analysis of whether a school is “in session” for purposes of the child labor laws and regulations is straightforward. In fact, the entirety of the analysis usually centers on determining the hours when educational instruction at the relevant minor’s physical school building are regularly scheduled to occur for all students. However, with the onset of COVID-19—and the resulting closure of physical school buildings and transition to remote learning—the analysis of when a school is considered to be “in session” has become slightly more complicated for purposes of the child labor laws and regulations. Fortunately, the DOL’s recent guidance provides clarity for employers on when a physically closed school is considered to be “in session” in this context.
Specifically, pursuant to the DOL’s recent guidance, school is deemed to be “in session” for a minor child during any week in which his or her residential school district requires all its students to attend school, either physically or through virtual or distance learning. As a result, if a public school district closes its physical school buildings due to COVID-19, but requires all of its students to attend remote instruction for any portion of a week—including a day or a partial day—then the school is considered to be “in session” during that week, and the limitations on child labor for when school is “in session” apply. In contrast, if a public school district has closed its physical school buildings, but does not require all of its students to attend remote instruction, then that school district is not considered to be “in session,” and thus, the limitations on child labor for when school is not “in session” apply.
For example, a 14-year-old girl who was employed in a non-agricultural job would only be permitted to work up to 18 hours during a week when all students at her school were required to attend remote educational instruction for five days during that week, as her school would be considered to be “in session”. Further, on those particular five days, she would only be permitted to work for her employer up to three hours on each day between certain specified hours. Likewise, on the other two days during the week when no distance learning was required, she would be permitted to work up to eight hours each of those days. However, if the following week, no remote instruction was required for all students at that same 14-year-old girl’s school, then her school would be not be considered “in session,” and so she could work eight hours each day between certain specified hours for up to 40 hours for the week.
Thus, it is readily apparent that, due to COVID-19, what was generally a straightforward analysis for employers has become extremely fact-specific due to the vastly varying requirements being implemented by individual school districts. As a result, businesses that employ minors should take great care to ensure—with respect to each and every minor that they are employing—that they remain in compliance with all relevant child labor laws and regulations.
Leave Benefits for Employees With Canceled Children’s Summer Programs
As set forth in detail in an our initial post (as further clarified in this post and updated in this subsequent post), under the Family First Coronavirus Response Act (FFCRA), covered employers are required to provide up to two weeks of paid leave—and up to 12 weeks of family and medical leave (10 weeks of which may be paid)—for eligible employees.
In relevant part, a covered employer is required to provide FFCRA leave to an employee that is unable to work or telework because that employee is required to care for his or her child whose “place of care” is closed due to COVID-19. The DOL has recently issued guidance clarifying that a child’s “place of care” for purposes of the leave benefits set forth in the FFCRA include summer camps and summer enrichment programs which the affected employee’s child would have otherwise attended while the employee was at work. Moreover, the partial closure of a relevant summer camp or enrichment program due to COVID-19 and related reasons (for example, operating at a reduced capacity, and thus, fewer children can attend than usual) is also sufficient in order for an affected employee to be eligible for leave pursuant to the FFCRA.
In order to be eligible to receive leave in this particular circumstance under the FFCRA, the employee at issue is still required to present his or her employer, either orally or in writing, with information in order to support his or her request for leave. That required information includes: (1) an explanation of the reason for the leave; (2) a statement that the employee is unable to work because of that reason; (3) the name of the affected child; (4) the name of the summer camp or enrichment program that would have served as the child’s place of care had it not closed or been cancelled; and (5) a statement that no other suitable person is available to care for the child.
Thus, the crux of this analysis is whether a specific summer camp or enrichment program would have, more likely than not, served as the “place of care” for an employee’s child had it not otherwise closed due to COVID-19 and/or reasons related to the same. Notably, the DOL’s guidance has expressly cautioned that a parent’s mere interest in a summer camp or a program for the affected child is not sufficient to satisfy this requirement. Instead, examples of when the requirement is satisfied include the following:
- The child at issue had applied to, was enrolled in, or had otherwise demonstrated an intent to enroll (for example, submitting a deposit) in the summer camp or enrichment program before it closed or cancelled its offerings;
- The affected child had attended said summer camp or enrichment program in the immediately prior year(s) and would have been eligible to attend again this year, had the program not otherwise been closed or cancelled; or
- If other circumstances exist which demonstrate the child’s enrollment or planned enrollment in a certain camp or summer program.
Ultimately, in close call situations, evidence that there was a “plan” for the child at issue to attend the camp or program—or that it was more likely than not that the child would have attended said camp or program had it not been closed due to COVID-19—is probably sufficient to satisfy this requirement for FFCRA leave.
From a practical perspective, the recent guidance from the DOL does not necessarily require employers to drastically change or adjust their current practices, particularly as it relates to either child labor law compliance or employee requests for leave under the FFCRA. Instead, it simply adds more color and clarity to how a business’ policies and practices that are, presumably, already in place should operate during an objectively unusual summer.
There is clearly no “one-size-fits-all” approach when presented with these complex and fact-specific employment issues in an ever-changing global economy. At KJK, we are here to help you make sense of this new legal landscape in light of your own particular situation. For further guidance on these issues, please contact Robert S. Gilmore (firstname.lastname@example.org), Alan M. Rauss (email@example.com), or another member of our Employment Law Team by calling 216-696-8700.