COVID-19 & Your Business: Frequent Questions

Under what circumstances may an employee take leave under the EPSLA or the EFMLEA to care for a son or daughter whose school or place of care has been closed, or whose child care provider is unavailable, for reasons related to COVID-19? (29 C.F.R. § 826.20(a)(8), 29 C.F.R. § 826.20 (b), 29 C.F.R. § 826.100(a),(e))

An employee who is unable to work or telework to perform available work because of a need to care for his or her son or daughter whose physical school or place of care has been closed, or whose child care provider is unavailable, for reasons related to COVID-19 may take EPSLA or EFMLEA leave for time the employee needs to and is actually caring for his or her child. An employee cannot take EPSLA or EFMLEA for this qualifying reason if the physical school or place of child care is closed due to a non-COVID-19 reason, such as summer vacation, unless the child’s summer child care provider or camp or other program in which the child is enrolled is closed due to a COVID-19 reason.

An employee does not need to take leave for the time a suitable individual is available to provide care. A suitable person may be a co-parent, co-guardian, or the child’s usual child care provider (e.g., daycare, babysitters, au pair, and family members or neighbors who provide unpaid child care on a regular basis). In other words, an employee only gets leave for the time spent actually providing care for his or her child and when no other suitable person can provide the care.

The notice requirements for taking EPSLA or EFMLEA leave are discussed in greater detail here and here. However, to summarize, in order to take leave for this qualifying event, the employee must provide the employer with documentation containing the following information:

  1. the employee’s name;
  2. date(s) for which leave is requested;
  3. the qualifying reason for leave;
  4. a statement that the employee is unable to work because of a qualified reason for leave; and
  5. the name of the son or daughter being cared for; the name of the school, place of care, or child care provider that has closed or become unavailable; and a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes the leave.

Last updated June 22

These materials are made available by Jackson Walker for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.