DOL Revises FFCRA Rules
Last Friday, in response to a recent decision from the Southern District of New York, the Department of Labor (DOL) issued revised rules for implementing the Families First Coronavirus Response Act (FFCRA). The revised rules, which took effect on September 16, 2020, are discussed in further detail below.
Background
As addressed in our prior client alert, the FFCRA applies to employers with fewer than 500 employees and contains two components: emergency paid sick leave and expanded FMLA leave – a portion of which is paid. Last month, the Southern District of New York held that certain portions of the rules issued by the DOL implementing the FFCRA were invalid. Specifically, the Court invalidated (1) the requirement that employees have work available to them to be eligible for leave, (2) the requirement that the employer consent to intermittent leave, (3) the expansive definition of “healthcare providers” who may be excluded from the FFCRA’s coverage, and (4) the timing of the documentation requirement. According to the FFCRA’s Frequently Asked Questions, the DOL considered the District Court’s ruling to apply nationwide and, in response, promulgated revised regulations.
The Revisions
Reaffirmation of Work Availability Requirement
Under the initial FFCRA rules, employees could only utilize FFCRA leave when an employer otherwise had work available for the employee. This meant that employees who were furloughed or had no work were ineligible for leave. In invalidating this requirement, the District Court noted that the initial rules only applied this “work availability requirement” to certain qualifying conditions for sick leave. The District Court further noted that the DOL had offered no explanation for the requirement.
In the revised rules, the DOL clarified that its intent was to apply the “work availability requirement” to all FFCRA-covered reasons for leave and made this requirement explicit. Additionally, the DOL explained that the FFCRA statute requires leave when an employee is unable to work “because” of and “due to” a covered reason. The DOL explained that it read these terms to refer to “but-for causation,” meaning the need for leave would not have occurred in absence of the FFCRA-covered reason. The DOL further noted that the term “leave” is best understood as applying to an absence that occurs when the employee would otherwise have been working. Relying on its experience administering and enforcing other leave requirements, the DOL clarified that if an employee is not expected or required to work, the employee is not taking leave. For example, under the standard FMLA, periods of time when an employer’s business activities have temporarily ceased and employees are not expected to report to work do not count against an employee’s FMLA leave entitlement because it is not “leave”. The DOL concluded that the fact that FFCRA leave is paid further supports this interpretation. The DOL pointed out that allowing a furloughed employee to be paid simply because they fall under a FFCRA-qualifying reason while their furloughed colleague is not being paid leads to an “illogical result”. FFCRA leave is intended to substitute for wages an employee would have otherwise received; but if an employer has no work for the employee, the employee would not have received any wages in the first instance.
The DOL clarified that an employer could not avoid offering FFCRA leave by simply purporting to not have work for an employee or by taking work away. Indeed, such a reaction would likely be considered retaliation under the Act. Instead, there must be a legitimate, non-discriminatory reason for the lack of work, such as a business downturn or a furlough.
Continued Requirement of Consent for Intermittent Leave
The initial rules required an employer’s consent if the employee wished to use emergency sick leave or expanded FMLA leave on an intermittent basis. In overturning this requirement, the District Court found that the DOL provided no justification for this condition.
In explaining why consent was required in the amended regulations, the DOL pointed to the regulations in the standard FMLA which permit intermittent leave only due to medical need, a qualifying exigency related to military service, or with the employer’s consent following the birth of a child. The DOL found the regulations related to qualifying exigency and the Armed Forces to be irrelevant for the FFCRA context. Similarly, demonstrated medical need was not an appropriate condition given that the FFCRA does not permit medical documentation as a precondition to taking FFCRA leave and that a medical need would not be present for school closure or caregiver unavailability reasons. Therefore, the DOL focused on non-medical situations, such as bonding leave, as most analogous to caring for a child whose school or childcare provider is closed or unavailable due to COVID-19 related reasons. As intermittent bonding leave requires employer consent, the DOL reasoned that so should expanded FMLA. Regarding non-childcare emergency sick leave, the DOL noted that the District Court had upheld the rule that intermittent expanded sick leave is only available for non-childcare reasons if the employee is teleworking. As employer consent is already required for telework, the DOL concluded that it would logically be appropriate to require employer permission to telework intermittently for sick leave purposes.
Importantly, the DOL clarified that employees requesting leave because their child’s school is operating on an alternate day or hybrid-attendance basis are not requesting intermittent leave. This is because the closures are determined and directed by the school, not the employee. The DOL explained, “[t]he 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).” Such a use of expanded FMLA leave does not require employer consent because the school literally closes and opens repeatedly. This same logic applies to other hybrid schedules such as half-day or every-other-week schedules. Conversely, if the school is closed for a week, but the employee wishes to take leave for only certain days that week, that leave would be considered intermittent. For example, the FAQs explain that in this situation, if the employee has a family member watch their child Tuesday and Thursday, but needs leave Monday, Wednesday, and Friday, this would be considered intermittent leave.
Definition of “Healthcare Provider” Revised
The FFCRA permits employers to exclude health care providers and emergency responders from eligibility for leave, likely (as the DOL notes) to prevent disruptions to the nation’s health care system. The amended regulations explain that the term “health care provider” is used in two entirely different contexts within the FFCRA: first, in determining who may advise an individual to self-quarantine due to concerns related to COVID-19, which definition mirrors the FMLA; and second, who may be excluded from the entitlement to leave, which definition was much broader under the initial FFCRA regulation. The District Court found the DOL’s definition of health care provider under that second usage was overbroad and held that, while the definition could be different in the second usage than the first, it should be more closely tied to specific roles, rather than to the identity of the employer.
The amended regulations note that adopting the same definition for “health care provider” for both of the above usages would be incompatible with the FFCRA’s goal to ensure that the health care function could continue to combat COVID-19 and operate more generally. However, the DOL also recognized the Court’s critique of the expansive definition. As such, the DOL revised the definition of “health care provider” for the purposes of exclusion from leave. The updated definition incorporates the narrower standard FMLA definition, but also captures other individuals who are “capable of providing health care services”: meaning diagnostic, preventive, treatment or other services “that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The regulations provide further detail as to what each of these services may entail. For example, services that are “integrated with and necessary to” the other services are those which would adversely impact patient care if not provided; for example, bathing, dressing, feeding, taking vital signs, setting up equipment, and transporting patients and samples.
Individuals who affect, but are not integrated with, patient care are not considered health care providers under the revised definition (e.g., IT professionals, building maintenance, human resources, food service workers, records management, consultants, and billers). The revised regulations also provide a non-exhaustive list of facilities where health care providers may work, drawing largely on the list of employers from the original regulations. The list, however, is a guidepost only and the DOL is explicit that simply working at one of those facilities does not make an individual a health care provider under the regulations.
Notice and Documentation Requirements Clarified
The District Court held that the requirement in the initial regulations that employees provide documentation “prior to” taking FFCRA leave was incompatible with the statute’s notice requirements, which only required “reasonable notice” after the first workday where expanded sick leave is used and notice “as practicable” when the need for leave is foreseeable for expanded FMLA leave. In response, the DOL amended the regulations to require that documentation be provided as soon as practicable, which in most cases will be when the employee gives the employer notice of their need for leave. These regulations make clear, however, that while advance notice for sick leave purposes cannot be required, notice for expanded FMLA is required “as is practicable” if the leave is foreseeable, which will almost always be in advance of taking the leave.
Takeaways
The revisions provide some welcome clarity for employers. Employers should review the revised regulations to ensure that they are appropriately administering any FFCRA-related leave requests, particularly for requests related to expanded FMLA. Employers with questions about these revised regulations should contact Kristina Grimshaw at kgrimshaw@fglawllc.com, or any other attorney at the firm.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.