Introduction

The Families First Coronavirus Response Act (FFCRA) was enacted just under six months ago in the wake of closings prompted by the then new coronavirus pandemic. As most employers know, the FFCRA created leave rights for many employees of employers with fewer than 500 employees for absences caused by the virus and its aftermath.

The FFCRA was itself a large and complicated bill, assembled in a remarkably short period of time, that borrowed aspects from the federal Fair Labor Standards Act and Family and Medical Leave Act (FMLA). Not surprisingly, the bill failed to answer a number of questions posed by employers and employees alike, and during the weeks that followed its enactment, the U.S. Department of Labor (DOL) issued scores of FAQs addressing many of those questions, and on April 1, 2020, only two weeks after the bill’s passage, it issued regulations that, for the most part, echoed the statements made in the FAQs. We have addressed many of those matters in this firm’s own FAQs about the FFCRA.

Litigation Uncertainty

Because the bill is so new, there have been few decisions, and most employers have relied on the DOL’s regulatory guidance about the act. On August 3, 2020, however, an Obama-appointed judge in the Southern District of New York (SDNY) invalidated a handful of the DOL’s regulations on the FFCRA on either procedural issues or on matters of statutory interpretation. New York v. U.S. Dep’t of Labor, Case No. 20-CV-3020 (JPO) (S.DNY Aug. 3, 2020). Most notably, the court’s ruling called into question important issues such as whether employees on furlough or layoff could be entitled to benefits, the scope of the exclusion for health care workers, the workings of intermittent leave, and the notice that employees seeking leave would be required to provide.

The New York district court opinion created a great deal of uncertainty due to questions about the breadth of the ruling, whether the court had correctly interpreted the statute, and whether the decision would have any application outside the Southern District of New York.

What the New Regulations Provide

On September 11, 2020, the DOL issued revised regulations addressing each of the court’s primary rulings. While the DOL has narrowed or changed some of the initial regulations, others are not as clear. The primary issues covered by the new regulations are:

1. Employees are entitled to benefits only if the employer otherwise would have work for them to perform. 29 C.F.R. 826.20.

The FFCRA was intended to provide leave and benefits to employees who were unable to work for COVID-19-related reasons. The New York district court, however, held that benefits were available even if there was not work for the employee to do, in part, according to the opinion, due to a lack of support provided by the DOL for its initial rule. An employer may not, however, refuse to provide benefits based on a purported lack of work, but can only do so when the employee would not have any work to perform, such as during a furlough, plant closing or layoff.

The revised rule provides additional support for the initial rule, but does not otherwise change it. Thus, if the employer has no work for the employee (such as that the plant or production line has closed, even if due to reduced demand during the pandemic), no benefits are payable.

2. Employees seeking paid sick leave or expanded family and medical leave on an intermittent basis must obtain their employer’s approval. 29 C.F.R. 826.50.

The revised rules also do not change the requirement that an employee who wants FFCRA benefits on an intermittent basis must obtain the employer’s approval. This provision had been invalidated in the New York case, in which the court noted that intermittent FMLA leave does not require employer approval. In declining to revise the rule, the DOL noted that several of the six reasons that might justify leave (such as that the employee has COVID-19 or is subject to a quarantine order) are inconsistent with any notion of intermittent leave.

Accordingly, employees who seek to use FFCRA leave on an intermittent basis can do so only with employer approval.

3. The health care provider exception under the FFCRA applies to employees who provide diagnostic, preventive or treatment services or other services that are integrated with and necessary to provide patient care (but not any employee of a health care employer). 29 C.F.R. 826.30.

According to the FFCRA, the employer need not provide leave or benefits to “health care provider” employees for certain of the reasons (obviously not including matters such as the employee’s own infection or quarantine). The likely reasoning behind this exception was that health care workers would be required to help during the pandemic, and having such employees on leave would interfere with the provision of health care services to the public at large.

The initial rules defined the term “health care provider” broadly, so that even medical clerks or receptionists would be covered. The New York district court rejected this definition as too broad, noting that it would likely even cover hospital janitorial staff – employees Congress likely had not considered as being exempt. The district court instead held that employers should use the FMLA’s own definition of a health care provider for the purposes of diagnosing serious health conditions.

In this case, the DOL adopted a compromise position, limiting the scope of the exception, but not as much as the district court held. Among other issues, the DOL noted that nurses were not considered “health care providers” for purposes of the FLMA as they cannot diagnose illnesses, but they are still essential for patient care.

The DOL’s new regulation provides that the exception applies to health care workers who:

• Fit the FMLA’s definition of a health care provider; or
• Are capable of providing diagnostic, preventive or treatment services; or
• Are capable of providing services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely affect patient care.

29 C.F.R. § 826.30(c)(1).

These last two provisions, based on the regulations, are directed toward health care workers such as nurses, nursing assistants, medical technicians and others who directly provide patient care, such as those who transport patients or samples. Thus, employees such as administrators, office workers, most food service workers and janitorial staff are likely not covered under the new regulations. Keep in mind, however, that the FFCRA does not apply to employers with more than 500 employees, so employees of large hospitals, for example, still would not be covered.

4. Clarifying what information employees seeking leave under the FFCRA must provide to the employer. 29 C.F.R. 826.100.

The New York court held that the initial regulations required more notice to the employer than the statute contemplated, such as, for example, the need to provide notice “in advance” of the leave. To address this concern, the new regulations provide:

• Like the FMLA, that the notice be provided “as soon as practicable”; and
• That the notice contain:
  1. The employee’s name;
  2. The date(s) for which leave is requested;
  3. The qualifying reason for the leave; and
  4. An oral or a written statement that the employee is unable to work because of the qualifying reason.

Conclusion

As long as the pandemic may have seemed thus far, the FFCRA is still only six months old, and it is scheduled to expire at the end of 2020. While the August 3 New York provisions placed some issues in doubt, at least some have been resolved. While litigation involving the statute and disputes between courts and agencies will likely continue long after the pandemic is over, at least some of these issues have been resolved for the short term.