Today, the new Department of Labor (“DOL”) regulations interpreting the Families First Coronavirus Response Act (“FFCRA”) take effect. The revisions (“Revised Regulations”) to the April 2020 Final Rule (“Final Rule”) interpreting the FFCRA address four parts of the Final Rule struck down last month by a federal district court judge: (1) the work-availability exclusion; (2) the definition of “health care provider”; (3) the provisions relating to intermittent or periodic leave; and (4) some of the documentation requirements. New York v. U.S. Dep’t of Labor, No. 20-cv-3020, 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).
The FFCRA became effective on April 1, 2020, and remains effective until the end of this year. Its two core components cover two types of COVID-19-related employee leave: (1) extended paid job protection leave for some childcare-related absences under the Emergency Family and Medical Leave Expansion Act; and (2) paid sick leave for various COVID-19-related absences under the Emergency Paid Sick Leave Act. It applies to most employers with under 500 employees and provides employees with up to 80 hours of leave at full pay if they become sick or must quarantine because of COVID-19. It provides 80 hours of leave at partial pay if they must care for sick family members or homebound children. The FFCRA also provides employees two weeks of unpaid time off, which may be followed by ten weeks at partial pay, if employees cannot work because their child’s school or childcare provider is closed.
The federal district court struck down all four of the provisions referenced above. It held the provision restricting leave to employees whose employers did not have work available to them (the work availability exclusion) was not consistent with the FFCRA and not based on reasoned decision making. Further, the court found the DOL’s definition of “health care provider” vastly overbroad, as it covered employees who happened to work for health care providers whether or not those employees’ jobs were directly related to providing health care services. The court also struck down the Final Rule’s provision requiring employer consent before an employee could take intermittent leave for qualifying conditions that did not increase the risk of COVID-19 contagion. The court found that the DOL failed to explain why such consent was required in those situations. Finally, the court invalidated the portion of the documentation provision that required employees to provide documentation before they took FFCRA leave.
In the Revised Regulations, the DOL did not change its position on two provisions of the FFCRA, despite the district court’s ruling. First, the DOL continues to maintain that the work availability exclusion is proper. Thus, an employer must have work for an employee to perform for the employee to take leave. The Revised Regulations contain additional justification for DOL’s position and clarify some of the regulatory language the DOL used in the Final Rule. Second, the DOL continues to take the position that intermittent or periodic leave is allowed only if an employee receives permission from the employer to take such leave. In the Revised Regulations, the DOL provided additional justification for applying the approval requirement used in the Family Medical Leave Act (“FMLA”) to the FFCRA where the qualification for the leave “does not exacerbate the risk of COVID-19 contagion.” According to the DOL, “It is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid ‘unduly disrupting the employer’s operations.’ It best meets the needs of businesses that this general principle is carried through to the COVID-19 context, by requiring employer approval for such leave.”
The DOL, however, did narrow its previously broad definition of “health care provider,” a category the FFCRA excludes from its provisions. “Health care provider” now includes only individuals “capable of providing health care services.” The term “health care services” includes (1) diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” and (2) services that meet the FMLA’s definition of that term. Thus, the Revised Regulations only exclude employees providing (or capable of providing) health care services. The Revised Regulations contain an illustrative, not exhaustive, list of employees who are not capable of providing health care services: “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. While the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records— they are too attenuated to be integrated and necessary components of patient care.”
Finally, according to the DOL, the Revised Regulations “clarify that the documentation required . . . need not be given ‘prior to’ taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice . . . .”
The Revised Regulations clarify two changes in the ways employers should administer their COVID-19-related leave policies. First, only employees who are “capable of” providing health care services should be excluded from leave under the FFCRA. Employers should consult the description set forth above and in the Revised Regulations when determining which employees to exclude. Second, employees need not provide documentation related to their leave before they take that leave. Rather, they must provide it “as soon as practicable” after they take their first day of leave.
What remains, for now, however, are the DOL’s previous determinations that employers must have work available for employees to be eligible for leave and that employees taking intermittent/periodic leave must obtain the employer’s permission for that leave beforehand. It is too early to know whether states, employee groups, or others will challenge these portions of the Revised Regulations.
April 2020 Final Rule: