On Sept. 11, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released revisions to regulations that incorporated paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).

The revised regulations are in response to the Aug. 3, 2020, decision made by the U.S. District Court for the Southern District of New York, which found that portions of the FFCRA are invalid. The amendments made to the current law clarify the rights of employees and the obligations of employers under the FFCRA's provisions on paid leave. The new regulations became effective on Sept. 16, 2020.

Summary of the revisions.

According to the DOL, the revisions do as follows:

  • Reaffirm and offer further clarification for the provision that employees may take paid leave under the FFCRA only if work would otherwise be available to them.
  • Reaffirm and offer further clarification for the condition that an employee has employer approval to take intermittent leave with FFCRA.
  • Revise the definition of "healthcare provider" to only cover employees who adhere to the definition of the term under the Family and Medical Leave Act or who are employed to provide diagnostic, preventative, or treatment services, or services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care.
  • Clarify that employees must provide the required documentation to justify their request for FFCRA leave to their employers as soon as possible.
  • Address an inconsistency as to when employees may be required to notify their employers in advance of a need to take expanded family and medical leave.

Deep dive into the revisions.

Original rule: Qualifying reasons for FFCRA leave.

Under the original FFCRA rule, an employee was entitled to FFCRA leave only if the qualifying reason is the direct cause for the employee’s inability to work. For example, under the rule the FFCRA reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he/she had a FFCRA qualifying reason due to layoffs, unavailability of work, or the employer’s closure.

This requirement was explicit for three of the six qualifying reasons for leave, but the DOL insists its intent was to apply the requirement to all six of the reasons for taking leave under the FFCRA.

Conclusions from the U.S. District Court for the Southern District of New York

An opinion and order from the U.S. District Court for the Southern District of New York states, “... the preamble only reinforces that the work-availability requirement applies only to three of the six qualifying conditions, in that it only mentions the requirement in its discussion of some qualifying conditions.”

The court further explains that the DOL did not sufficiently explain the reason for imposing the requirement at all, and the Department’s explicit application of the requirement to only three of the six reasons was unreasoned and inconsistent with the statutory text. Because of this, the court struck down the work-availability requirement.

This reaction caused concern among observers who noted that without the work availability requirement present in the ruling, employers who have laid off employees or have had to close their doors due to lack of business or government orders may nevertheless be responsible for FFCRA paid leave if an employee were to experience a qualifying event listed in the rule.

What the Updated Guidance from the DOL Reflects

The updated guidance provided by the DOL keeps the rule in place but provides further clarification.

The Department continues to interpret the FFCRA to impose a but-for causation standard and revises the rule to explicitly include the requirement in all qualifying reasons for leave.

The Department also notes that employers may not make work unavailable in an effort to deny FFCRA leave; rather, if an employer is denying FFCRA paid leave due to the lack of available work, there must be a legitimate, non-retaliatory reason why the employer does not have work available for an employee to perform. Additionally, the Department clarifies that the work availability requirement focuses solely on whether the employee would have reported to work, instead of focusing on an hour by hour assessment as to whether the employee would have a task to perform.

Original rule: Employer approval needed to take intermittent FFCRA leave.

Under the original rule, the provision required an employee to obtain his or her employer’s approval before taking FFCRA leave intermittently.

FFCRA leave is permitted on an intermittent basis only if the qualifying reason for leave is to care for the employee’s child whose school, place of care, or child care provider is closed or unavailable due to COVID-19, and only with the employer’s consent. However, an employee who is teleworking may take intermittent leave for any of the FFCRA’s qualifying reasons as long as the employer consents.

Conclusions from the U.S. District Court for the Southern District of New York

The U.S. District Court for the Southern District of New York upheld the FFCRA’s prohibition on intermittent leave for employees reporting to the worksite for all reasons except caring for a child due to school/childcare closure or unavailability, reasoning that other reasons for leave may result in a higher risk of spreading the virus if intermittent leave at the worksite was available.

The court states, “Congress did not address intermittent leave at all in the FFCRA; it is therefore precisely the sort of statutory gap.” However, the court struck down the employer consent requirement, arguing that the Department did not adequately explain the rationale for the rule.

What the Updated Guidance from the DOL Reflects

The updated guidance from the DOL affirms the consent requirement with additional explanation.

The Department explains, FMLA intermittent leave should, where foreseeable, avoid “unduly disrupting the employer’s operations.” To parallel this requirement, where intermittent leave is not required for medical reasons, the consent requirement balances the employee’s need for leave with the employer’s interest in avoiding disruptions.

The Department also further clarified their definition of intermittent leave, comprising only those leaves taken in short, intermittent periods of time throughout the day rather than full or half day increments. For example, the amended regulations note that employer consent requirement does not apply to employees who take FFCRA leave in full-day increments to care for children whose schools are operating on an alternate day or another hybrid-attendance basis. For purposes of FFCRA, each day of actual school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day, rather than constituting intermittent leave. The Department argues that the same reasoning applies to other alternating schedules, such as where the employee’s child attends in-person classes every other week or half of each school day and the employee takes FFCRA leave to care for the child during the weeks or half-days in which the child does not attend classes in person.

On the other hand, employer consent would be required in instances of true intermittent leave, such as where the school is physically closed but the employee only wishes to take leave for certain portions of the school closure, for reasons other than the school’s remote instruction schedule.

Original rule: The definition of "healthcare provider.”

Under the original rule, the FFCRA allowed employers to exclude employees who are ‘health care providers’ or ‘emergency responders’ from eligibility for expanded family medical leave and paid sick leave to avoid disruptions in the health care system.

In defining health care provider, the FFCRA adopts the FMLA definition which includes licensed doctors of medicine/osteopathy, and other persons determined by Secretary to be capable of providing health care services.

After the initial rules were released, observers noted that this definition may be too broad and may encompass persons employed by health care institutions who were not meant to be excluded under the rule.

Conclusions from the U.S. District Court for the Southern District of New York

The court also found this lack of clarification troubling stating that the Final Rule’s definition exceeds the DOL’s authority and  Observing that “Because employers may elect to exclude “health care providers” from leave benefits, the breadth of the term “health care provider” has grave consequences for employees.”

Additionally, the court noted that the definition should be based on the skills, role, duties, or capabilities of the employee, rather than the employer.

What the Updated Guidance from the DOL Reflects

The Department’s revised rule clarifies that the definition of a health care provider to include physicians and others who make medical diagnoses or is capable of providing health care services, including those who  provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care. This new definition focuses more on the role of the employee, rather than the employer.

The revised rule lists examples of employees who are not health care providers including:

  • IT professionals
  • Building maintenance staff
  • HR personnel
  • Cooks
  • Food service workers
  • Record managers
  • Consultants
  • Billers

The rule also lists examples of services that may be included in each of the categories noted above:

  • Diagnostic: Taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, or interpreting test or procedure results.
  • Preventative: conducting screenings, checkups, and counseling to prevent illness, disease, or other health problems.
  • Treatment: performing surgery or other invasive/physical interventions, administering/providing prescribed medication, providing or assisting in breathing treatments.
  • Integrated with and necessary for care: Bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

Original rule: Reasonable notice.

FFCRA permitted employers to require employees to follow reasonable notice procedures to receive paid sick leave, including documentation and advance notice if the necessity for leave is foreseeable.

Conclusions from the U.S. District Court for the Southern District of New York

The court concludes that the requirement that documentation is given prior to taking leave is inconsistent with the requirement that notice be given as is practicable, and states, “To the extent that the Final Rule’s documentation requirement imposes a different and more stringent precondition to leave, it is inconsistent with the statute’s unambiguous notice provisions…”

What the Updated Guidance from the DOL Reflects

The DOL provides clarification that documentation is not always necessary prior to taking paid sick leave/expanded FMLA but should be given as soon as practicable.

If the need for leave is foreseeable, notice must be given before taking leave, however, if the need for leave is unforeseeable, the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

Proper documentation  may include the employee name, dates for which leave is requested, the qualifying reason for leave, and an oral/written statement that the employee is unable to work.

 Read the revisions here.

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Disclaimer: Please note that this is not all-inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding the specific application of the information to your own plan.