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In response to a New York District Court order invalidating certain provisions of the Department of Labor (DOL) regulations which implemented the Emergency Paid Sick Leave and Expanded Family and Medical Leave provisions of the Families First Coronavirus Response Act (FFCRA), the DOL has published revised regulations. While the revised regulations aim to resolve the problems identified by the Court order—namely that the regulations, as previously drafted, were inconsistent with, or lacking a basis in, the FFCRA—the revised regulations generally reaffirm the following key points:
The revised regulations, however, do make certain changes to and clarifications of employers’ obligations and employees’ rights under the FFCRA. In particular, they:
Effective April 1, 2020, and expiring December 31, 2020, the FFCRA included two provisions affording employees certain new and expanded leave rights: (1) Emergency Paid Sick Leave Act; and (2) Emergency Expansion of the Family Medical Leave Act.
Specifically, the Emergency Paid Sick Leave Act (EPSLA) provisions of the FFCRA requires employers, with fewer than 500 employees, to provide employees (regardless of their length of employment), paid sick leave for absences caused by specified COVID-19 related reasons. These qualifying reasons are:
Under the FFCRA’s Emergency Expansion of the Family Medical Leave Act (EFMLA) provisions, employers with 500 or fewer employees must provide eligible employees (those who have worked for the employer for 30 days prior to the start of their leave) with up to 12 weeks of expanded family and medical leave if the employee is unable to work (remotely or otherwise) due to the need to care for a son or daughter whose school or childcare is unavailable due to the COVID-19 crisis. Ten weeks of EFMLA leave must be partially paid; the remaining two weeks of EFMLA leave may be paid as ESPL.
Following publication, revision, and retraction of its sometimes inconsistent FAQs, the DOL published temporary regulations (the “Rule”) in April 2020. The Rule was designed to clarify workers’ rights and employers’ responsibilities under the FFCRA. However, the State of New York immediately filed suit in the U.S. District Court for the Southern District of New York challenging certain aspects of the temporary rule. In response to that challenge, the District Court ruled that four parts of the DOL’s April Rule were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the requirement for employees who take FFCRA leave to provide their employers with certain documentation before taking leave; and (4) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave.
As noted above, the DOL issued revised regulations, effective immediately, to reaffirm in part, and revise in part its regulations, and further explain its positions. Below are certain highlights of the new regulations.
EPSL and EFML are only available if the employee has work from which to take leave.
Adopting a “but-for” cause analysis, the DOL confirms in its new regulations that “an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform.” The DOL’s new regulations make clear this “work availability” requirement applies to all qualifying reasons for leave. Thus, if the employer has no work for the employee—even if the lack of work is COVID-19 related—there is no obligation to provide leave. Employers should take note, however, that the DOL expressly states that “[t]here must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.” As the DOL warns, altering an employee’s schedule may be impermissible retaliation.
The FFCRA itself says nothing about intermittent leave. The DOL, exercising its broad authority to effectuate the purposes of the ESPLA and EFMLA, filled that void. The new DOL regulations reaffirm that where intermittent leave is permissible under the Rule (which depends on whether the employee is teleworking or reporting to the worksite), intermittent leave will always be contingent upon an employer’s consent.
Importantly, the Rule prohibits intermittent leave for employees who are reporting to the worksite when the reason for leave correlates to a higher risk of spreading the virus. Thus, an employee who is reporting to the worksite may only take intermittent leave to care for the employee’s child due to school or childcare closure or unavailability, and in that case, employer consent to intermittent leave is required. An employee who is teleworking may take intermittent leave for any of the FFCRA’s qualifying reasons as long as the employer agrees.
One other key clarification on “intermittent leave” to note: the DOL’s new regulations clarify that employer approval is not required for employees who take FFCRA leave in full-day increments to care for their children whose schools are operating under alternate day or other hybrid attendance. The DOL concluded that such leave would not be “intermittent” leave–under DOL’s view, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.
The FFCRA permits employers to require employees to follow reasonable notice procedures to take EPSL after the first absence. The FFCRA also requires employees taking EFML to provide their employers with notice of the need for leave as soon as practicable when the necessity for such leave is foreseeable. However, the DOL’s prior Rule applied the “after the first workday” notice standard to both EPSLA and EFMLA leave. The DOL’s revised regulations correct this error by stating that notice of EFMLA leave is required “as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave.”
Similarly, the DOL’s prior Rule stated that documentation of the need for leave must be provided prior to taking leave under the EPSLA or EFMLA. Recognizing the District Court was correct when it observed the requirement to provide documentation “prior to leave” was contrary to the FFCRA, the DOL amended its regulations to clarify that documentation need not be provided prior to leave, but rather may be provided “as soon as practicable which in most cases will be when the employee provides notice.”
As to what must be provided by way of documentation, the DOL confirmed it includes: (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 may require additional information/documentation to establish the specific reason for the leave, for instance, the name of the government entity that issued the quarantine or isolation order, the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19, or the name of the child being cared for, name of school, place of care or child care provider that has closed or is unavailable, and a representation that no other suitable person is available to care for the child.
Notably, the DOL has clarified in its Frequently Asked Questions that if the childcare/school is available, but the employees choose not to avail themselves of that care, there is no entitlement to leave. In other words, if a child’s school is open for in-person attendance but the employee decides to keep the child home, the employee is not eligible for paid leave.
The FFCRA allows employers to exclude from eligibility EFMLA and EPSLA leave any employee who is a “health care provider” or “emergency responder”. The understood purpose underlying this exclusion was that the option to exclude health care providers and emergency responders serves to prevent disruptions to the health care system’s capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs that may result from health care providers and emergency responders being absent from work. The District Court found the DOL’s Rule defining “health care provider” was too broad. The DOL agreed, and its new regulations provide that “healthcare provider” includes only those employees who meet the definition of that term under the FMLA regulations, or 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, which if not provided would adversely impact patient care. The DOL clarified that a lab technician processing test results would be considered included health care providers, but expressly provided illustrative examples of employees who are not health care providers: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. While the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records—they are too attenuated to be integrated and necessary components of patient care to qualify for potential exclusion from FFCRA rights.
The DOL regulations explain that the above definition of “health care provider” applies only for the purpose of determining whether an employer may exclude an employee from eligibility to take FFCRA leave. This definition does not otherwise apply for the purposes of the FMLA. Nor does it identify health care providers whose advice to self-quarantine may constitute a qualified reason for paid sick leave under FFCRA.
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Time will tell if these revised regulations will again be subject to attack and judicial review. By its very term, the FFCRA expires on December 31, 2020. In the meantime, employers are encouraged to familiarize themselves with the existing and revised obligations and rights under the FFCRA.
If you have questions or concerns about how COVID-19 impacts your obligations as an employer, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work or a member of our employment law team at employmentlaw@rjo.com. We are here to help.
