After the Families First Coronavirus Response Act (“FFCRA”) was passed on March 18, 2020, the Department of Labor (“DOL”) implemented regulations interpreting the statute and clarifying many of the questions it raised. The State of New York subsequently filed a lawsuit in federal court arguing the DOL exceeded its authority and violated the Administrative Procedure Act with respect to four portions of the regulations: (1) the work-availability requirement for paid leave under the FFCRA; (2) the broad definition of “health care provider”; (3) the prohibition on intermittent leave under certain circumstances; and (4) the documentation requirements for leave under the FFCRA. On August 3, 2020, Judge Oetken issued an Order (the “Order”) invalidating several portions of the regulations.
In response to the Order, the DOL issued updated regulations revising and clarifying the FFCRA’s original regulations. In large part, the DOL doubled down and rejected the Order, reaffirming the DOL’s position and much of the original regulations.
Work availability requirement
First, the DOL reaffirmed a “but for” causation requirement for all six qualifying reasons for FFCRA leave and rejected the view, as expressed in the Order, that the work-availability requirement was inconsistent with the purpose of the FFCRA. In other words, FFCRA leave is only available if the employer has work for the employee to perform. The DOL stated “leave” means “an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” The qualifying reason for leave must be the actual reason that the employee is unable to work. If there is no work for the employee to perform, perhaps due to a closed worksite or a decreased need for employees, FFCRA leave is not available.
Definition of “health care provider”
In an apparent agreement with the Order’s criticism of the breadth of the DOL’s definition of “health care provider,” the DOL revised the definition to focus on a specific employee rather than placing the focus on the employer. The DOL’s revised definition now mirrors the definition of “health care provider” that is currently provided in the Family and Medical Leave Act (29 CFR § 825.102 and § 825.125). For purposes of the FFCRA, “health care provider” also includes employees who are “employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” This is a substantial narrowing of the definition, and employers who previously relied on the DOL’s broader definition under the regulations should re-evaluate if excluded employees still fall within the revised definition.
The DOL also reaffirmed intermittent leave is only available to an employee under the FFCRA if the employer agrees to provide the leave on an intermittent basis. The DOL reiterated its position that FFCRA leave may only be taken intermittently when doing so would not increase the risk that an employee will spread COVID-19 in the workplace. The DOL further explained there is a difference between intermittent leave and additional requests for leave. Specifically, the DOL noted that if an employee is taking leave for full-day increments—for example when an employee has a child who is required to participate in hybrid-attendance schooling—a request for leave three days a week is an additional request, not an intermittent request. As such, an employer cannot reject such a request on the basis that it is a request for intermittent leave. But for instances where an employee does actually seek to use FFCRA leave intermittently, the employer-consent requirement remains intact.
Finally, the DOL clarified that employees must provide necessary documentation to support a need for leave under the FFCRA “as soon as practicable.” The DOL also stated that such documentation does not have to be provided to an employer prior to an employee taking FFCRA leave—the key point rejected in the Order.
The DOL’s revised regulations go into effect when the regulations are published in the Federal Register on September 16, 2020. Similar to the original version of the regulations, the temporary rule expires on December 31, 2020.
While it is still unclear whether the Court’s opinion in New York v. Department of Labor will have nationwide effect, the DOL’s revised regulations will apply nationwide. Employers should continue to provide FFCRA leave pursuant to the DOL’s revised regulations, which now provide additional clarification and guidance for employers. “Health care providers” should immediately revise their policies to provide FFCRA leave consistent with the DOL’s updated definition. Finally, given the DOL’s stance on the work-availability requirement and employer-consent requirement for intermittent FFCRA leave, employers should monitor whether additional legal challenges are made regarding these issues.