COVID-19 update: DOL revises FFCRA regulations

By Lillian Hartgrove, State Board of Education Chairman
Special to the UCBJ

While April feels like a lifetime ago, you likely remember the U.S. Department of Labor (DOL) issuing a final rule implementing the Families First Coronavirus Relief Act (FFCRA, or “the Act”), under which, most public-sector employers and private sector employers with fewer than 500 employees are required to provide up to two weeks of Emergency Paid Sick Leave (EPSLA) to employees unable to work for one of six COVID-related reasons. 

Further, those employers must also offer up to 10 weeks of partially paid leaved under the expanded Family and Medical Leave Act (EFMLA) coverage to care for a child whose school or place of care is closed because of the pandemic. 

Shortly after enactment, the state of New York filed suit claiming the regulations unduly restrict an employee’s right to paid leave. In early August, a federal judge in the Southern District of New York struck down portions of the DOL’s regulations, finding the DOL exceeded its authority. The court, specifically, invalidated the work availability requirement, much of the health care provider exception, the employer consent requirement for intermittent leave, and the employer’s right to require documentation in advance of leave.  

In response, on Sept. 11, 2020, the DOL issued revised regulations in line with the New York court’s decision. In its revised regulations, the DOL reaffirms that EPSLA and EFMLA leave may be taken only if the employer has work available for which an employee can take leave; confirms that intermittent leave under FFCRA can only be taken with employer approval; provides an amended definition of “health care provider” that is narrower than its original regulations; and clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation. 

A.  Work Availability Requirement

Under the DOL’s original rule, one of the requirements for taking FFCRA leave was that the employer must actually have work available for the employee to perform when the need for FFCRA leave occurs. If the employee is not scheduled to work – whether due to furlough, business closure or otherwise – there is no work from which to take leave. The court found, in vacating the ruling, that the DOL’s explanation for the work availability requirement was deficient in that it did not provide sufficient analysis as to the reason why work must be available for leave to be available. In its new final rule, the DOL responded by setting out a ‘but-for” standard with the following statement:

“If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.” 

The DOL did note that employers may not arbitrarily withhold work in order to thwart an employee’s ability to take leave, and emphasized that the unavailability of work must be due to legitimate, nondiscriminatory, nonretaliatory business reasons. 

B.  Intermittent Leave 

In its new ruling, the DOL held firm to its position that intermittent FFCRA leave is available only when the employer consents, but noted an interesting situation that may change how many employers defined “intermittent.” The DOL supported its position to uphold its prior ruling by reiterating the classic FMLA regulations, which require that when the need for leave is foreseeable, it must be scheduled in a way that is minimally disruptive to business operations. It was further noted that FFCRA leave obligations should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.” 

The main concern for employers stems from the DOL’s analysis of employees’ children partaking in some hybrid-type schooling situations, where children are attending school on a part-time basis. The DOL provides that in these situations, each day of school closure “constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” As a result, intermittent leave is not required in these situations because the school closes and opens repeatedly. 

More simply put, a full single day of leave is not intermittent, and an employee does not need employer consent to take of every Tuesday and Thursday due to their child’s school being closed, because Tuesday and Thursday are two separate school closures, each entitling the employee to FFCRA leave. However, an employee whose child participates in a part-time schooling plan that requires the child to attend school only in the morning or afternoon, the employee will need to take continuous leave or obtain employer consent to use leave intermittently in partial-day increments. 

C.  Health Care Provider

The FFCRA permits employers to exclude “health care providers” from the Act’s leave benefit provisions. If you read the DOL’s definition of “health care provider” under the first ruling, then you know why the court had concerns. Essentially, under the first ruling, anyone and everyone who worked for a company providing medical care in any way, or for a company that contracted with these institutions, was a health care provider. 

In response to the court’s holding, the DOL revised and narrowed the exclusion to only include those individuals capable of providing health care services, which include “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” or otherwise meet the definition of the term found in the FMLA. The FMLA definition includes “doctors of medicine or osteopathy” authorized to practice in their state or other medical professionals such as podiatrists, dentists, clinical psychologists, optometrists, many chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, and other similar professionals. 

Under the new rule, employers may also elect to exempt nurses, nurse assistants, medical technicians, and laboratory technicians who process test results; they too are considered “health care providers.” Employers may also elect to exempt employees who perform diagnostic, preventative, treatment, or other integrated and necessary services. The DOL further gave the following examples of employees who may not be excluded:  information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.

D.  Notice

The court found several inconsistencies in the DOL’s initial ruling, with respect to the timeline for employee’s giving notice and providing supporting documentation. The DOL tried to remedy those inconsistencies in its new ruling, by requiring employees provide notice and supporting documentation “as soon as practicable.” The DOL warns that employers should be careful not to require supporting documentation as a precondition to providing FFCRA leave and should provide employees a reasonable opportunity to provide the required documentation. 

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