On the evening of Friday, September 11, 2020, the U.S. Department of Labor (DOL) issued revisions and clarifications to its temporary rule issued on April 1, 2020, that implemented the Families First Coronavirus Response Act (FFCRA). The revised regulations will take effect on September 16, 2020, and, according to the DOL, “reaffirm its regulations in part, revise its regulations in part, and further explain its positions.” In conjunction with the issuance of the revisions to the temporary rule, the DOL has also updated its FAQs on the FFCRA to reflect the revised regulations.
The revised regulations address the following four provisions of the temporary rule that were invalidated by the United States District Court for the Southern District of New York on August 3, 2020:
- the requirement that leave may only be taken under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) if the employer has work available for the employee from which the leave would be taken;
- the definition of “health care provider” and who, based on that definition, employers may exclude from taking leave under the FFCRA;
- the requirement that employees must obtain their employers’ consent to take intermittent leave under the FFCRA; and
- the requirement that employees must provide employers with certain notice and documentation before taking leave under the FFCRA.
Work Must Be Available for an Employee to Be Eligible to Take FFCRA Leave
One of the requirements for an employee to be eligible to take leave under the FFCRA is that the employer must have work available for the employee to perform from which the leave needs to be taken. As such, employees who are not scheduled to work due to being furloughed or the business being closed are not eligible to take FFCRA leave even if a qualifying reason were to arise.
In its August 2020 ruling, the Southern District of New York vacated the work availability requirement of the FFCRA on the basis that the DOL had not provided a sufficient explanation as to why work must be available for leave to be available. In the revisions to the temporary rule, the DOL reiterates the requirement that work must be available for FFCRA leave to be available. The DOL does caution employers not to arbitrarily withhold work in order to impede an employee’s ability to take leave and stresses that the unavailability of work must be due to legitimate, non-discriminatory and non-retaliatory business reasons.
The Definition of “Health Care Provider” Has Been Revised and Narrowed
One of the critical findings by the Southern District of New York was that the definition of “health care provider” under the FFCRA regulations was overly broad. The court held that the rule should be revised to require that health care employers must conduct a position-specific analysis to determine who is capable of providing health care services based on their skills, roles, duties and capabilities. An employer may not exclude all employees from the FFCRA merely because the employer identifies as a health care provider. The revised regulations provide that a health care provider is (1) anyone deemed a health care provider under the Family and Medical Leave Act (FMLA), or (2) any employee who is capable of providing health services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
The revised regulations include examples of the types of employees who qualify as health care providers, and those who do not. For instance, the regulations specifically identify the following types of employees who may continue to be excluded from taking leave under the FFCRA:
- nurses, nurse assistants, medical technicians and others who directly provide diagnostic, preventive, treatment, or other integrated services;
- employees providing the aforementioned services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
- employees who “provide services that are integrated with and necessary components to the provision of patient care,” such as laboratory technicians who process test results necessary to diagnoses and treatment.
To the contrary, employees who provide services that affect, but are not integrated into, the provision of patient care, such as IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers, should not be excluded from the FFCRA paid leave provisions.
Based on the above regulatory revisions, employers exempting health care provider employees from the FFCRA’s paid leave provisions should review the revised rule to assess whether their employees still qualify for the exemption.
Employees Must Have Employer Consent to Take Intermittent Leave Under the FFCRA
The Southern District of New York struck down the FFCRA’s rule that employees must have employer consent to take leave under the FFCRA because the court felt that the DOL lacked rationale for requiring consent. In its revised regulations, the DOL has reaffirmed the consent requirement but has now provided a rationale for its position.
In the revised regulations, the DOL notes that the FMLA’s regulations permit intermittent leave when it is medically necessary or where the employer and employee agree to an intermittent leave arrangement. The DOL further observes that the FMLA regulations require that foreseeable leave be scheduled in a way that is least disruptive to business operations. When, under the FFCRA, leave is needed to care for a child whose school or place of care is closed, the applicable analysis would be similar to the analysis under the FMLA’s regulations requiring a balancing of the employee’s need for leave with the employer’s interest in avoiding disruptions. Per the DOL, this is best accomplished by requiring agreement by the employer for the employee to take intermittent leave.
The DOL’s revisions also provide some clarification as to what type of leave qualifies as intermittent leave. Specifically, the DOL explains that each full day a school is closed is a separate reason for requiring FFCRA leave. Thus, if an employee’s child’s school is only open to that child on Monday, Wednesday and Friday, the employee would be entitled to FFCRA leave on Tuesday and Thursday, and the leave would not be considered intermittent. On the other hand, if an employee’s child only attends school in the morning so that FFCRA leave is only required for partial days, then the employer could provide consent to intermittent FFCRA leave on a partial-day basis, or the employee would need to take continuous leave under the FFCRA to cover the absences.
Documentation Required Under the FFCRA Should Be Given as Soon as Practicable
The Southern District of New York held that the DOL’s regulations requiring employees to provide documentation supporting the need for FFCRA leave before taking FFCRA leave was unfeasible in certain situations. Taking the court’s holding into account, the DOL has revised the requirement that FFCRA documentation be provided before leave begins to now require the documentation be given “as soon as practicable, which in most cases will be when the employee provides notice” of the need for leave.
The DOL notes in the revisions that when leave is required to care for a child whose school or place of care is closed, the employee must provide notice as soon as practicable. If the need for leave is foreseeable, the DOL expects that employees will provide notice in advance of their need for taking the leave.
Employers covered by the FFCRA should review their policies and practices to ensure they are in compliance with the revised regulations.