DOL Publishes Revised FFCRA Regulations

On September 11, 2020, the U.S. Department of Labor (“DOL”) posted revisions to its original regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (“FFCRA”).

The revisions come after the U.S. District Court for the Southern District of New York invalidated several portions of the original FFCRA regulations on August 3, 2020. 

Background

On March 18, 2020, President Trump signed the FFCRA into law, creating two new emergency paid leave requirements in response to the COVID-19 global pandemic.

“The Emergency Paid Sick Leave Act” (“EPSLA”), provides certain employees of covered employers with up to two weeks of paid sick leave if the employee is unable to work for specific qualifying reasons related to COVID-19 (referred to here as “Emergency Paid Sick Leave”). These qualifying reasons are:

1. Being subject to a Federal, state, or local quarantine or isolation order related to COVID-19;
2. Being advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. Experiencing COVID-19 symptoms and seeking a medical diagnosis;
4. Caring for another individual who is either subject to a Federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
5. Caring for the employee’s son or daughter whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons; and
6. Experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services (“HHS”).

“The Emergency Family and Medical Leave Expansion Act” (“EFMLEA”), amended Title I of the Family and Medical Leave Act to permit certain employees of covered employers to take up to 12 weeks of expanded family and medical leave, ten of which are paid, if the employee is unable to work due to a need to care for his or her son or daughter whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons (referred to here as “Expanded FMLA”).

For purposes of the FFCRA, “covered employers” include any private employers with fewer than 500 employees, and any public agency with one or more employees.  Covered employers have been subject to the FFCRA paid leave provisions since April 1, 2020.

Brief Summary of New York District Court Decision

On April 14, 2020, the State of New York filed suit in the United States District Court for the Southern District of New York (“District Court”) challenging certain parts of the temporary rule under the Administrative Procedures Act (“APA”).

On August 3, 2020, the District Court ruled that four parts of the temporary rule were invalid.  Specifically, the Court invalidated:

1. the requirement under § 826.20 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 under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval;
3. the definition of an employee who is a “health care provider,” set forth in
   826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and
4. the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

FFCRA Revisions

In response to the Court ruling, the DOL issued a revised temporary rule which reaffirms in part, and revises, in part, the FFCRA regulations.  We address each of the “reaffirmations” and “revisions” here, with the most significant changes first.

Definition of “Health Care Provider” for Exclusion Purposes

Both the EPSLA and the EFMLEA allow employers to exclude employees who are “health care providers” or who are “emergency responders” from eligibility for expanded family and medical leave and paid sick leave. The intent of such exclusion is 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 original FFCRA text adopts the FMLA’s definition of “health care provider,” which covers (i) licensed doctors of medicine or osteopathy and (ii) “any other person determined by the Secretary to be capable of providing health care services.”  Subsection (ii) includes, but is not limited to:  

• Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
• Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
• Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts…;
• Any health care provider 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; and
• A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

Despite the FFCRA’s adoption of this definition, the statute notably uses the term “health care provider” in two markedly different contexts.  On the one hand, the FFCRA uses “health care provider” to refer to medical professionals who may advise an individual to self-isolate due to concerns related to COVID-19 such that the individual may take paid sick leave to follow that advice, and to medical professionals from whom an individual with symptoms seeks medical diagnosis.  In such cases, the FMLA’s definition of “health care provider” detailed above is to be used.

On the other hand, the original regulations contained an entirely different (and much broader) definition of “health care provider” for purposes of an employer’s right to exclude certain employees from the FFCRA’s benefits.  Specifically, the original regulations defined “health care provider” for exclusion purposes as:

(i) …anyone employed at any doctor’s office, hospital, health care center, 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, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

(ii) This definition includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID–19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID–19.

The District Court found such definition to be overly broad.  Indeed, the original regulation’s definition was exceedingly broad—arguably covering anyone who worked in the healthcare industry, regardless of their role.  The District Court held that the definition cannot “hinge[ ] entirely on the identity of the employer,” but must depend on the “skills, role, duties, or capabilities” of the employee.  In other words, a janitor, receptionist, or individual not providing medical care, should not qualify as a “health care provider.”

The District Court did not foreclose, however, an amended regulatory definition that is broader than the FMLA’s regulatory definition, “as long as the different definitions individually are reasoned and do not exceed the agency’s authority.” With this in mind, the DOL revised its definition of “health care provider” to cover:

• Any Employee who is a health care provider (under the traditional FMLA’s definition), or;
• Any other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive 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 (referred to collectively here as “Medical Services”).

This definition specifically includes nurses, nurse assistants, medical technicians, and any other persons who directly provide Medical Services; employees providing Medical Services under the supervision, order, or direction of, or providing direct assistance to, a person described as a health care provider; and employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

Employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

Finally, the revised regulations note that while this definition may include employees who work in health care facilities, an employee does not need to work in such a facility to be considered a “health care provider.”  Similarly, working in a health care facility does not necessarily mean the employee is a “health care provider.”

Practical Effect:  This revised definition of “health care provider” is the most significant revision made by the DOL under its new regulations.  Employees who have previously been excluded from the FFCRA’s benefits may now be eligible.  More specifically, we anticipate that previously excluded employees may now request leave to care for children whose school or daycare have been closed due to COVID-19.  Additionally, employers may wish to inform employees who had previously been excluded from the FFCRA’s benefits that they may now be eligible in the event of a qualifying need.  Such notice can be made via a revised policy, or a specific communication to the affected individuals.

The Work Availability Requirement

The DOL’s original regulations broadly stated that an employee with a qualifying reason for leave was nevertheless not eligible for leave if “the Employer does not have work for the Employee.”  Yet, the original regulations only detailed the “work availability” requirement for situations where the employee was unable to work or telework because he or she was (a) subject to a quarantine or isolation order, (b) caring for a relative or household member, or (c) caring for a child whose school or day care is closed.  The regulations did notexplicitly provide such a requirement where the employee was unable to work because he or she (a) was advised by a health care provider to self-quarantine, (b) was seeking a medical diagnosis after experiencing COVID-19 symptoms, or (c) had a substantially similar condition defined by DHHS.  The original regulations also applied this work availability requirement to Expanded FMLA leave. 

The District Court ultimately struck down the work availability requirement in the regulations for all qualifying reasons.  This put employers in a tenuous situation.  If an employer did not have work available for an employee, and that employee nonetheless requested paid leave under the EPSLA or the EFMLEA, it could grant such leave, but the Treasury Department could refuse to reimburse the employer because there was no work from which the employee could be taking leave.  On the other hand, the employer could deny the requested leave because it had no available work, but then the employee could bring a claim for violating the law based on the District Court’s invalidation of the DOL’s regulation imposing a work availability requirement in certain settings. 

Fortunately, the DOL’s revised regulations provide some clarity.  They specifically reaffirm that Emergency Paid Sick Leave and Expanded FMLA may be taken only if the employee has work from which to take leave.  The temporary rule clarifies that this requirement applies to all qualifying reasons to take Emergency Paid Sick Leave and Expanded FMLA.  The DOL emphasizes that an employee is entitled to FFCRA leave only if the qualifying reason is a “but-for” cause of the employee’s inability to work.  In other words, the qualifying reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason.  For instance, if the employer has closed a worksite (either temporarily or permanently), an employee’s otherwise qualifying reason for leave could not be the “but-for” cause of the employee’s inability to work; rather, in such case, the employee could not work because of the worksite closure. 

To be clear, the DOL’s interpretation does not permit an employer to avoid granting FFCRA leave by purporting to lack work for an employee.  In other words, employers may not adversely alter an employee’s schedule to make work unavailable simply because that employee requests or takes FFCRA leave.  To do so may constitute impermissible retaliation.  There must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.

Practical Effect:  The reality is that most employers have been applying the work availability requirement in a manner consistent with the original regulations, a practice which the revised regulations now more explicitly support.  Similarly, employers have been applying the requirement to all qualifying reasons, and not just some of them.  For this reason, this adjustment will likely have little practical effect on employers’ on-going FFCRA compliance efforts.

Employer Approval of Intermittent Leave

Intermittent FFCRA leave has been a frequent source of questions from our clients.  Indeed, the FFCRA did not specifically address intermittent leave in the statute.  Despite this, the original regulations stated that an employee can take leave intermittently if the employer and employee agree. 

The District Court invalidated this “employer consent” requirement of the regulation.  Under the Court’s ruling, employees are entitled under both the EPSLA and the FMLEA to take leave intermittently whether or not the employer consents, unless working intermittently would require reporting to the employer’s work site and the reason for leave is due to the employee (a) being subject to a government quarantine or isolation order; (b) receiving a recommendation by a health care provider that the employee quarantine; (c) experiencing COVID-19 symptoms and seeking a medical diagnosis; or (d) taking care of another individual who is subject to a quarantine or isolation order or who has been advised by a health care provider to self-quarantine.

The DOL’s revised regulations reaffirm the original rule’s position that employer approval is needed to take intermittent FFCRA leave, regardless of the qualifying reason, and regardless of whether the work could be performed remotely or on-site.  The DOL states that this requirement is consistent with longstanding FMLA principles governing intermittent leave. 

Additionally, the original regulations already provide that employees may telework only where the employer permits or allows.  Because employer permission is a precondition under the FFCRA for telework, the DOL believes it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.  The DOL has thus aligned the employer-agreement requirements to apply to both telework and intermittent leave from telework.

Practical Effect:  As was the case for the work availability requirement, most employers already adopted the “employer consent” approach; therefore, most employers will not have to adjust their FFCRA process relevant to intermittent leave.

Bonus Example:  In addition to clarifying the employer consent requirement, the DOL’s revised regulations also provide a helpful example of when leave is even considered to be “intermittent,” thus requiring employer approval.  The DOL gives the example of an employee who is needed to care for children whose school is on an alternate-day or hybrid-attendance schedule due to COVID-19.  In such scenario, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so.  For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.  The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).  Under the FFCRA, intermittent leave is not needed because the school literally closes and opens repeatedly.  The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.  This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule.  Under these latter circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.

Notice Obligations 

Finally, the District Court struck down the requirement that employees provide advance documentation of the need for Emergency Paid Sick Leave or Expanded FMLA leave. The Court noted that the statute requires only “reasonable notice” and held that a blanket requirement of advance documentation would, in some circumstances, not be reasonable. 

The DOL therefore amended the regulations to clarify that the notice/documentation required for Emergency Paid Sick Leave may only be required after the first workday (or portion thereof) for which the employee takes the leave.  After the first workday, the employer can require the notice as soon as practicable given the specific circumstances. 

Notice for taking Expanded FMLA may also be given as soon as practicable.  If the reason for leave is foreseeable, however, it will generally be practicable to provide notice prior to the need for leave.

Practical Effect:  Most employers have not rigidly required advance notice of the need for FFCRA leave, as many employers opted to quickly grant leave to “get the clock running” on the leave as soon as possible.  Moving forward, employers should ensure that any FFCRA policies and communications not require advance notice of the need for Emergency Paid Sick Leave, or Expanded FMLA, unless the need for Expanded FMLA is foreseeable. 

Next Steps

These revisions are effective immediately.  This means employers must adjust their FFCRA policies, where necessary, to align with the new regulations.