Last week, the U.S. Department of Labor (DOL) submitted revised regulations for the federal Families First Coronavirus Response Act (FFCRA).
Covering employers with fewer than 500 employees, the FFCRA created two different leave entitlements related to COVID-19: emergency paid sick leave (EPSL) and expanded Family and Medical Leave (E-FMLA). To assist employers with administering FFCRA leaves, the DOL enacted the initial regulations in March 2020. These revisions are the result of an August 3, 2020, Southern District of New York (District Court) court ruling, which invalidated the following four aspects of the DOL’s original regulations:
- FFCRA leave is only available if the employee has work to take leave from;
- The definition of “health care provider”;
- An employee may only take intermittent leave under the FFCRA with an employer’s permission; and
- An employee must provide documentation to their employer for FFCRA leave before the leave is taken.
The District Court’s ruling left employers with a lot of unanswered questions. The ruling was not clear on whether it applied to just employers within the District Court’s jurisdiction in New York or whether it applied to all employers nationwide. To help resolve this ambiguity, the DOL’s submitted revised regulations attempt to address the district court’s rationale for invalidating the four original FFCRA provisions.
Work Availability Required For Leave
The DOL’s original regulation required an employee to have work available before exercising their leave rights under the FFCRA. In its original guidance, the DOL stated that if an employee is furloughed or on a reduced schedule, that employee may only take leave for those days in which the employee was scheduled to work. Otherwise, the employee should apply for unemployment insurance through their state’s program.
The District Court invalidated this rule because it held that the DOL applied the work requirement unequally among the six qualifying reasons for EPSL under the FFCRA and that, in general, the DOL failed to properly explain why work available was a requirement for any leave under the FFCRA.
In its revised regulations, the DOL reaffirms the work availability requirement for all six reasons an employee may take EPSL and adds further explanation that this requirement exists based upon the language of the statute.
Definition of “Health Care Provider”
The FFCRA allows employers that are “health care providers” to deny leave requests. The DOL’s initial regulation defined “health care provider” broadly and focused on who the employer is. The DOL admitted that based upon this language, an English professor, librarian or cafeteria manager at a university with a medical school would all be “health care providers.” The District Court invalidated this definition as being overly broad.
In response, the DOL revised the regulation to focus the “health care provider” definition on who the employee is. “Health care provider” now means:
- A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices;
- Any person who is employed to provide diagnostic services, preventative services, treatment services or other services integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care; and
- Any other person determined by the Secretary of Health and Human Services to be capable of providing health care services.
The DOL’s initial regulation required an employer to authorize an employee’s request to use EPSL or E-FMLA intermittently if the employee is teleworking or needs leave to care for a child whose school or place of care has closed due to COVID-19. The District Court invalidated this rule because the DOL failed to explain at all why employer consent is required for such intermittent leave.
In response, the DOL reaffirms that intermittent FFCRA leave is only available upon an employer’s consent, and it analogizes its FFCRA intermittent leave rule to longstanding FMLA principles that require employer consent for intermittent leave when FMLA isn’t taken for a medical reason. The DOL considers FFCRA intermittent leave to fall outside of leave taken for a medical reason. Thus, employer authorization for intermittent leave is appropriate.
The DOL’s initial regulation required employees to provide the necessary documentation to support their need for FFCRA leave prior to taking the leave. The District Court invalidated this rule because it was stricter than the statute’s language.
In response, the DOL amended its rule to require that employees provide the documentation “as soon as is practicable,” which in most cases will sync up to the time that the employee provides notice of the need for leave.
These revised regulations will go into effect once they’re published in the Federal Register, which is expected to happen on September 16, 2020.
Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert
CalChamber members and nonmembers can use the COVID-19-Related Paid Sick Leave or Family and Medical Leave (FFCRA) — Employee Notice and the COVID-19-Related Paid Sick Leave or Family and Medical Leave (FFCRA) Documentation Checklist — For Employer Use Only on HRCalifornia. Like what you see? See how CalChamber can help you.