FFCRA Update: Department of Labor Revises Regulations, Largely Rejects SDNY Court Ruling

On August 3, the Federal Court for the Southern District of New York invalidated four aspects of the Department of Labor's (DOL) April 1, 2020, regulations on the Families First Coronavirus Response Act (FFCRA). The court took issue with the agency's interpretation of the FFCRA. The DOL has issued new regulations in response, modifying two rules and providing additional legal justification to reaffirm its stance on intermittent leave and the work availability rule. Employers should take note of the below to ensure they are in compliance.

As a reminder, the FFCRA requires employers with fewer than 500 employees to provide two types of paid leave to qualifying employees: 1) up to 80 hours of Paid Sick Leave; and 2) 12 weeks of Emergency Family Medical Leave (10 of which may be paid leave). An employer tax credit reimburses employers for this paid leave.
 
The new regulations clarify the DOL's position on key aspects of leave under the FFCRA:
 

1. The Work Availability Requirement is Reinstated
   
   The DOL affirmed its rule that employees are only eligible for FFCRA leave if an employer has work available for that employee. This means that employees who are temporarily furloughed do not qualify for paid leave.
    
2. Employer Permission is Still Required for Intermittent Leave, But Most Leaves Related to Distance Learning are Exempt from this Requirement
   
   The DOL reasserted that an employee must obtain their employer's permission to take leave intermittently. However, according to the DOL, employees taking leave to care for a child whose school is closed due to COVID-19 do not need employer permission to take leave non-consecutively. The DOL views each day or period of time a school closed as a separate qualifying reason for FFCRA leave.
   
   This means employees taking leave on non-consecutive days to care for a child whose school operates under a hybrid model (with both in-person and distance learning) are not taking intermittent leave and do not need employer permission to take leave non-consecutively. For instance, a qualifying employee may take leave each Tuesday and Thursday to care for their child whose school is closed for distance learning on those days without employer permission. According to the DOL, however, this exemption only applies if the employee is using FFCRA leave for the entire time the school is closed on that particular day. If the school is closed all day, but the employee only wishes to take 2 hours off of work to assist with distance learning, that would qualify as intermittent leave and would trigger the requirement for employer permission.
   
   Takeaway: While an employer may deny intermittent FFCRA leave under some circumstances, an employee has a right to take leave on non-consecutive days to care for a child whose school is closed for distance learning.
    
3. New Definition for Health Care Provider Exemptions
   
   Under the FFCRA, employers do not need to provide FFCRA leave to "health care providers." The new regulations narrow the definition of "health care provider" focusing on an employee's role and duties:
    
   • An employee is a health care provider under the FFCRA if the employee is capable of providing health care services or employed to provide diagnostic services, preventative services, or treatment services.
      
   • A health care provider also includes employees whose services are otherwise so integrated with and necessary to provision of patient care that their absence would adversely impact patient care. 
      
     • Examples of integral services include taking patient vitals, setting up medical equipment for procedures, transportation of patients and samples, and patient bathing, dressing, and hand feeding.
        
4. Documentation for FFCRA Leave Is Required As Soon As Practicable
   
   The DOL has revised documentation requirements for FFCRA leave. To take Paid Sick Leave and Expanded FMLA leave, an employee must provide documentation "as soon as practicable." Where the need for leave is foreseeable, an employee must generally provide documentation in advance of the leave.

These changes are effective upon publication in the Federal Register. Publication is anticipated on September 16, 2020. As with the initial DOL regulations, these regulations are subject to court review. Maslon's Labor & Employment Group will continue to monitor developments and will provide additional updates regarding any challenges.

We Can Help

The changing landscape of FFCRA leave is complicated. Maslon's Labor & Employment Group is available to help answer your questions, draft policies, and assist with leave requests.