We reported last month on a decision by a New York federal court that rejected portions of the Department of Labor regulations implementing the Families First Coronavirus Response Act (“FFCRA”) leaves signed into law earlier this year. The FFCRA created rights for employees of employers with fewer than 500 employees, and all public employers, to take up to 10 days of paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) for various COVID-19 related reasons, and another 10 weeks of paid leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) for leaves necessitated by COVID-19 related school and day care closures. The court held that the following FFCRA rules were improper:
- A rule allowing for intermittent FFCRA leaves only if the employer and the employee agreed to the use of leave time intermittently;
- A rule denying FFCRA benefits to employees who are unable to work due to FFCRA-covered reasons when the employer does not have work for those employees (for example, when the employee would be on furlough status due to a COVID-related reduction in force);
- A rule allowing employers of health care providers to exclude a broad range of employees from the FFCRA’s benefits; and
- A rule allowing employers to require documentation of the need for FFCRA leave time prior to the leave’s commencement.
In response to that opinion, the Department of Labor (“DOL”) has recently issued new rules that will go into effect on September 16, 2020. These new rules either affirm the Department’s earlier positions (with additional support) or revise the earlier rules to accommodate the court’s concerns. Employers should familiarize themselves with these revised rules in order to ensure continued compliance with the FFCRA, as the law will continue to be enforceable through the end of 2020.
Intermittent Leaves Continue To Be Available Only For Some FFCRA Leaves, And Only When The Employer and Employee Agree.
The New York court had held in its August decision that it was permissible for the DOL to allow FFCRA intermittent leaves only when those leaves were necessitated by school closures and the unavailability of child care. However, the court went on to hold that the DOL had exceeded its authority by limiting all FFCRA intermittent leaves to only when both the employer and the employee consent. The court’s ruling in this regard concerned employers, as paid intermittent leaves during the pandemic would make staffing extremely difficult in many positions, and could stretch the permissible leave period well beyond the 12 weeks of combined EPSLA and EFMLA leave that is permitted by those Acts.
In the new regulations, the DOL affirmed its earlier interpretation of the law requiring an employer and employee to agree before any FFCRA intermittent leave is allowed. In the comments to the new regulations, the DOL explained that Congress did not mention intermittent leave when it passed the FFCRA (in contrast to the FMLA, which expressly permitted such leave to occur), making it appropriate for the Department to “fill the gap” as to how intermittent leave should be implemented. The DOL went on to justify the need for both parties to the leave to agree by pointing to the longstanding principle that FMLA intermittent leaves should be structured to avoid unduly disrupting the employer’s operations. In addition, the FFCRA regulations allow for telework only when the employer permits or allows. Applying those principles in tandem, the DOL found that employer permission for intermittent leave was appropriate and may lead to the employer and employee working in tandem to reduce or eliminate an employee’s need for FFCRA leave altogether.
Furthermore, the DOL emphasized that “intermittent” leave exists only when an employee is taking partial day increments of FFCRA leave. An employee who is taking FFCRA leave in full day increments to care for children whose schools are operating on alternate day bases are not considered to be taking intermittent leave. In that scenario, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.
While the DOL affirmation of its earlier regulations regarding intermittent leave is welcome, employers should be sure that they are applying “intermittent” leave rules appropriately, given the DOL’s emphasis on full day leave increments not being intermittent leaves.
Paid FFCRA Leaves Continue To Be Available Only When Work Would Otherwise Be Available To The Employee.
Another provision of the DOL regulations challenged in the New York opinion was the DOL’s position that employees are not entitled to FFCRA leave if there is no work for them to perform during the time that leave is needed. Under the court’s opinion, employees who met the requirements for leave under the EPSLA or EFMLA had to be paid for leave during a time when an employer did not have work available for the employee to perform, such as during a furlough, while other employees who did not have a qualifying reason for a leave would continue to be paid.
The DOL, after noting that it had “carefully considered” the court’s opinion, provided a more complete explanation for why it had limited the availability of FFCRA leaves to circumstances where work was otherwise available. The DOL noted that FFCRA leaves are available only where there is a need for leave “because” of or “due to” a qualifying reason for leave. Both terms have consistently been interpreted by the United States Supreme Court as requiring a “but-for” causation, and the DOL believed that interpreting those terms consistently with the prior cases was appropriate. The DOL went on to explain that if there is no work for an employee to perform, the otherwise qualifying reason cannot be a but-for cause of an employee’s inability to work – there is no work from which to take leave. And, the DOL stated, the term “leave” implies that an employee is absent from work at a time they otherwise would have been working. That is not true if the employee could not have worked even if the reason for leave were absent. Finally, the DOL notes, the FFCRA and other CARES Act protections, including the Payroll Protection Program and the Pandemic Unemployment Insurance Program, are indicative of a separate scheme intended to protect workers whose employers had closed.
So employers should be able to breathe a sigh of relief on this front. This question, which had concerned many employers just after the FFCRA was passed, continues to be resolved in a logical fashion. If there is no work for the employee to do, then that employee is not eligible for a paid FFCRA leave.
“Health Care Providers” Are Now Defined More Narrowly, And Do Not Include Support Type Personnel.
The New York court also took exception to the DOL’s expansive definition of a “health care provider” who may be exempted from FFCRA eligibility. The challenged definition defined health care providers as anyone who is employed by or contracts with,
“[A]ny doctor’s office, hospital, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.”
Under that definition, the court noted, employers could exempt many employees who did not directly provide health care services, including clerical employees, dietary employees, custodians, administrators, and the like from receiving FFCRA paid leave benefits. The court held that definition was too broad.
The DOL responded in the newly updated regulations by revising the definition of “health care provider” in the FFCRA regulations to instead include both persons who are defined as health care providers under the FMLA who can certify a need for medical leave (i.e., a doctor of medicine or osteopathy or other persons who are determined by the Secretary of Labor as being capable of providing health care services) and other persons who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with any necessary to the provision of patient care. It is not enough, under the revised regulations, for an employee to simply work for an entity that provides health care services.
The DOL provides some examples of persons who are and are not “health care providers” under the revised regulations to dispel potential confusion by specifying that nurses, nurse assistants, medical technicians, and any other persons who directly provide diagnostic, preventive, and treatment services are among “health care providers” that can be exempted by employers from receiving FFCRA leaves. So are employees who provide diagnostic, preventive, or treatment services under the supervision, order, or direction of another health care provider. And, even employees who do not directly interact with patients, but who provide services that are “integrated with and necessary components to the provision of patient care” can be exempted from FFCRA leave eligibility, such as lab technicians. However, if a person provides services that merely affect, but are not integrated into, the provision of patient care, they are not covered by the “health care provider” definition. IT professionals, HR personnel, cooks, food service workers, and billers are eligible for FFCRA leave if they are otherwise qualified, even if they work for a hospital, doctor’s office, or long term care facility.
Given this substantial revision of the “health care provider” exemption, employers who intend to take advantage of this exception are advised to confer with counsel to review carefully the new regulatory framework before deciding to deny an employee FFCRA leave because they are believed to be a health care provider.
FFCRA Documentation Must Now Be Submitted As Soon As Practicable, Rather Than Prior To The Beginning Of A Leave.
Finally, the New York opinion found that the FFCRA regulation requiring an employee to provide documentation supporting their need for leave prior to taking leave was invalid. The DOL revised its regulation on this point, so that employees are now required to provide support for their leaves “soon as practicable.” That information includes the employee’s name, the dates for which leave is requested, the qualifying reason for the leave, and an oral or written statement that the employee is unable to work. An employer can also require an employee to provide the additional information required by 29 CFR §826.100(b)-(f) at the same time, which will vary depending on the type of leave being requested.
These new regulations should resolve many uncertainties that were caused by the New York opinion. To be sure, the new regulations appear to specifically address the legal concerns raised by the court. Whether the New York court—or for that matter, other courts—will agree if more challenges are brought cannot be predicted, but at least for the time-being, the new regulations provide a roadmap for employer to use. Employers deciding whether to permit employees to take FFCRA leaves should familiarize themselves with the new regulations and confer with counsel about their meaning to ensure they remain compliant with their obligations under this new law.