In response to a decision of the Southern District of New York striking down portions of the April 2020 Rule issued by the Department of Labor (DOL) under the Families First Coronavirus Response Act (FFCRA), the DOL has issued an Amended Rule that takes effect on Sept. 16, 2020.

The court’s decision affected four discrete aspects of the Rule: (1) the work-availability requirement; (2) the definition of a “health care provider” who can be excluded from coverage; (3) the requirement for employer consent to intermittent leave; and (4) the requirement that employees provide documentation before taking leave. All other aspects of the Rule were unaffected by the decision.

The DOL’s Amended Rule reaffirms its position on work availability and intermittent leave, while modifying its position on documentation and the type of employees who meet the definition of “health care provider.”

The Work-Availability Requirement

The federal court in New York had rejected the Rule’s requirement that an employer must have work available for the employee to perform before the employee could qualify for leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and/or the Emergency Paid Sick Leave Act (EPSLA). According to the court, the DOL’s explanation for the work‑availability requirement was “patently deficient” to support such a “monumental policy decision.”

In the Amended Rule, the DOL provided additional support for its renewed position that the availability of leave under the FFCRA depends on the availability of work for the employee to do. According to the DOL, FFCRA leave is available only when the employee’s qualifying reason for leave is the sole, "but-for" reason that the employee cannot work. Thus, “an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform.”

The Definition of “Health Care Provider”

The court had also rejected the Rule’s broad definition of a “health care provider” who employers could elect to exclude from FFCRA leave entitlement. In response, the DOL’s Amended Rule first incorporates the definition under longstanding FMLA regulations that explicitly includes the following (subject to compliance with licensure requirements):

  • Doctors of medicine or osteopathy
  • Podiatrists
  • Dentists
  • Optometrists
  • Chiropractors
  • Clinical psychologists
  • Clinical social workers
  • Nurse practitioners
  • Physician assistants

Those earlier regulations also have a general provision that includes a professional “from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.”

The DOL’s Amended Rule further states that the term “health care provider” for the FFCRA exclusion option includes any employee “who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

According to the Amended Rule, this alternate definition covers nurses, nurse assistants, medical technicians, laboratory technicians, and other employees who provide the types of services described above. Conversely, employees such as IT professionals, maintenance staff, foodservice workers, or records managers who support the service providers would not be “health care providers” under the Amended Rule and therefore cannot be excluded from coverage.

Intermittent Leave

The New York court had also rejected part of DOL’s regulations regarding intermittent use of FFCRA leave, again because the DOL’s Rule provided no explanation for a blanket requirement that employers must consent to any intermittent leave. The Amended Rule reaffirms the original regulations on intermittent leave, with additional reasoning from DOL to support the conclusion that employer consent is required before intermittent leave is available.

However, the DOL’s Amended Rule clarifies that employees whose need for leave results from their child’s school operating on an alternate-day schedule or other hybrid model are not taking intermittent leave. For example, the child’s school may offer in-person instruction on Monday, Wednesday, and Friday one week, then Tuesday and Thursday in-person instruction the following week. Similarly, a school may offer in-person classes for only half of a school day. In either of those examples, the parent’s need for leave would not be considered intermittent and is not conditioned on the employer’s consent.

Documentation Requirement

Finally, the court had rejected the requirement in the Rule that employees must provide documentation of their need for FFCRA leave prior to taking leave. The DOL’s new position under the Amended Rule is that employees must provide documentation “as soon as is practicable, which in most cases will be when the Employee provides notice.” Under the Amended Rule, that documentation must include all of the following:

  • The employee’s name.
  • The dates for which leave is requested.
  • The qualifying reason for leave under the FFCRA.
  • An oral or written statement that the employee is unable to work because of that qualifying reason for leave.

Accordingly, documentation cannot be required in advance of FFCRA leave. As for notice, the Amended Rule provides that it cannot be required in advance for EPSLA leave. For EFMLEA leave, however, “it will generally be practicable to provide prior notice prior to the need to take leave” if the need for leave is foreseeable, such as when the employee knows that a school or childcare center will be closed.

Conclusion

The Amended Rule resolves – for the time being – the uncertainty created by the Southern District of New York’s decision. Further litigation or other changes may follow the Amended Rule, however.