The DOL Amends FFCRA Paid Leave Rule

The United States Department of Labor’s Wage and Hour Division (“DOL”) recently announced amendments to regulations regarding the paid leave provisions of the Families First Coronavirus Response Act (FFCRA).

By way of background, and as discussed in detail in our prior blog post, the FFCRA provides two types of leave to employees of covered employers (private employers with fewer than 500 employees and public employers of any size, with certain exceptions) – emergency paid sick leave (EPSL) and expanded family and medical leave (EFML). An employee may be eligible for 80 hours of EPSL if he or she is unable to work or telework (without regard to the employee’s length of employment) if the employee:

  1. Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. Is experiencing COVID-19 symptoms and seeking a medical diagnosis;
  4. Is caring for an individual who is subject to a quarantine or isolation order, or has “been advised” to self-quarantine;
  5. Is caring for a child, because the child’s school or place of care has been closed (or the child’s care provider is unavailable) due to COVID-19 related reasons; or
  6. Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor.

An employee who works for a covered employer (for at least 30 days), may take up to 12 weeks of EFML, for qualifying reasons if he or she is unable to work, to care for his or her child because the child’s school or place of care is closed (or the child’s care provider is unavailable) due to COVID-19 related reasons. These paid sick and expanded family leave provisions are set to expire on December 31, 2020.

Challenges to the DOL Rule

On April 1, 2020, the DOL released a temporary final rule concerning the FFCRA (“Rule”). On April 14, 2020, the State of New York commenced a lawsuit in the United States District Court for the Southern District of New York challenging certain parts of the Rule as invalid as outside of the DOL’s authority pursuant to the Administrative Procedures Act. On August 3, 2020, in State of New York v. U.S. Department of Labor, et al., the Court ruled that four parts of the Rule were invalid: (1) the requirement that EPSL and EFML are only available if an employee has work from which to take leave (“work availability requirement); (2) the requirement that an employee obtain employer approval before taking intermittent leave under the FFCRA; (3) the definition of the term “healthcare provider” under the FFCRA for purposes of determining whom may be excluded from taking FFCRA leave; and (4) the requirement that an employee provide his or her employer with certain documentation before taking leave.

In response to the decision, on September 11, 2020, the DOL released amendments to the Rule. These amendments went into effect on September 16, 2020 and will remain in effect through December 31, 2020, when the FFCRA is set to expire.

The Work Availability Requirement

In the amendments, the DOL reaffirmed that consistent with the FFCRA’s text — an employee is only entitled to FFCRA leave if the qualifying reason for leave is a but for cause of the employee’s inability to work. In other words, the FFCRA qualifying reason must be the actual reason the employee is unable to work, as compared to a situation where the employee would be unable to work regardless of whether he or she had an FFCRA qualifying reason for leave. The DOL explained:

  • If there was no work for an individual to perform due to circumstances other than a qualifying reason for leave — such as where an employer temporarily or permanently closed its worksite, then the qualifying reason could not be a “but for” cause of the employee’s inability to work because the employer would have no work from which the individual could take leave.
  • The continued application of the work availability requirement is supported by the fact that use of the term “leave” in the FFCRA is best understood to require that an employee be absent from work at a time when he or she would “otherwise” be working, noting that the term “leave” is commonly understood as “authorized absence from work.” Thus, if an employee is not required or expected to work, he or she is not taking leave.
  • Removing the work availability requirement would be inconsistent with one of the FFCRA’s purposes, namely discouraging employees with COVID-19 from going to work. If, however, there is no work to be done, there is no need to discourage infected employees from going to work.
  • Removing the work availability requirement would lead to “perverse results.” In general, where an employer closes its business and furloughs its workers, those workers would not be paid during the closure or furlough period as there is no work to be done. Nonetheless, an employee with an FFCRA qualifying reason would continue to be paid during this furlough or closure period, while his or her co-workers were not receiving paychecks. The DOL explained that it did not believe that Congress intended such a result.

Finally, the DOL clarified that its interpretation does not permit an employer to avoid granting FFCRA leave by purporting to have no work for employees, explaining that the work availability requirement must be understood in view of applicable anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking FFCRA leave. Instead, there must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform (e.g., where an employer has temporarily or permanently ceased operations at the worksite because of a downturn in business).

Although the April 1 Rule explicitly stated that the work availability requirement applied to only three of the six qualifying reasons for leave (discussed above), the DOL clarified that the Rule applied to all six reasons for leave.

Employer Approval for Intermittent Leave

The DOL reaffirmed that employer approval is needed to take intermittent FFCRA leave, explaining that this requirement is consistent with longstanding FMLA principles governing intermittent leave.

The DOL also clarified that where an employee is reporting to the worksite — intermittent leave is permitted for only one of the six qualifying FFCRA reasons — leave to care for a child whose school or place of care is closed or unavailable for COVID-19 related reasons. The DOL explained that permitting intermittent leave for any of the other five qualifying reasons for EPSL would increase the risk of spreading the virus, thus hindering rather than furthering the FFCRA’s purposes.

The DOL noted, however, that an employee who is teleworking and not reporting to the worksite may take intermittent leave for any of the FFCRA’s qualifying reasons provided the employer consents. The DOL explained that the employer-approval condition for intermittent leave where the qualifying reason does not exacerbate the risk of spread of COVID-19 is appropriate and consistent with the FMLA’s longstanding principles that such leave, where foreseeable, should not “unduly disrupt” an employer’s operations.

Finally, the DOL explained that the employer-approval condition does not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because of COVID-19. Unlike other types of intermittent leave – in an alternate day or hybrid situation, the leave would not be considered “intermittent” as the school is physically closed to certain students on specific days – as determined by the school, and not the employee. An employee, for example, may need to take FFCRA leave on a Monday, Wednesday, and Friday of one week, and a Tuesday and Thursday of the next to care for a child when school is closed. For FFCRA purposes, each day of school closure is considered a separate reason for FFCRA leave, which ends when school opens the next day. This reasoning also applies to longer and shorter alternating schedules (e.g., where the employee’s child attends in-person classes for half of each school day, or where the child attends in-person class every other week), and the employee takes leave to care for the child during the half-day or weeks in which the child does not attend classes in-person.

The Definition of “Healthcare Provider”

The FFRCA permits employers to exclude employees who are “healthcare providers” or “emergency responders” from eligibility for EMFL and EPSL. The DOL understands this employer exclusion option to prevent disruptions to the healthcare systems capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs resulting from healthcare providers and emergency responders taking leave from work.

In response to the Court’s decision, the DOL modified the definition of “healthcare provider” to include physicians and others who make medical diagnosis, and identified additional employees who are “healthcare providers” by focusing on the roles and duties of these employees – as opposed to their employers. A “healthcare provider” must provide “diagnostic, preventative or treatment services” or other services “integrated with and necessary” to providing “patient care.”

Accordingly, the term “healthcare provider” encompasses: (a) doctors, nurses, nurse assistants, medical technicians, and others who directly provide “diagnostic,” “preventative treatment,” or other services “integrated with and necessary” to provide patient care, and employees who provide such services at their supervision or direction, or assist them in providing such services; and (b) employees who do not directly interact with patients, but who provide services that are “integrated with and necessary components” to providing such care, such as, for example, a laboratory technician.

On the other hand, the following individuals would not be considered covered “healthcare providers”: IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultant, and billers — because their services are not integrated and necessary components of patient care.

The amendments also provide a non-exhaustive list of facilities where healthcare providers may work.

Documentation and Notice Required to Support FFCRA Leave

Finally, the DOL clarified that employees are required to provide documentation to their employers to support their need for FFCRA “as soon as practicable,” rather than “prior to” taking EPSL, and revised the Rule to correct an inconsistency regarding when an employee may be required to give notice of EFML to his or her employer. The DOL explained that where an employee’s need for EFML is foreseeable, the employee should give advanced notice of the leave. With respect to documentation, an employer may require an employee to provide, as soon as practicable (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work.

Employers should carefully review their policies and procedures to ensure that they are in compliance with the newly amended regulations. Employers should also be cognizant of the fact that, as of now, these paid sick leave and expanded family leave requirements will expire on December 31, 2020. If you have any questions regarding this blog post, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.