The Department of Labor (DOL) this month issued revised regulations for implementing the Families First Coronavirus Response Act (FFCRA). The action was in direct response to a court challenge in which the U.S. District Court for the Southern District of New York, taking an employee-friendly stance, struck down four aspects of the original rule. While clarifying ambiguities in the original rule, DOL’s new guidance concedes to the court on some points but stands firm on others.
What the DOL’s original rule said
The DOL on April 1 provided guidance related to the Emergency Paid Sick Leave Act provision of the FFCRA, stating that certain public employers and private employers with fewer than 500 employees must provide up to two weeks of paid sick leave if the employee is unable to work or telework for certain coronavirus-related reasons, such as if the employee has been ordered or advised to quarantine or is caring for someone who is subject to a quarantine, and up to 12 weeks (10 weeks paid) of family medical leave for employees who can’t work or telework because a minor child’s school or child care provider is closed due to COVID-19. Employees are only eligible for FFRCA benefits if their employers have work for them, according to the DOL, which also stated health care providers could be excluded by their employers from taking paid leave. Among its many other provisions, the rule barred employees from taking leave intermittently unless their employer agreed and required employees to submit documentation justifying their request before taking leave.
Court vacates four parts of the DOL’s rule
In a lawsuit the State of New York claimed DOL overstepped its bounds on a number of issues, and the District Court vacated four aspects of DOL’s rule: the requirement that there be work available in order for the person to take leave; the broad definition of “health care provider” that included anyone employed at a facility where medical services are provided; the requirement that an employee secure employer consent for intermittent leave; and the requirement that the employee provide documentation to the employer before taking leave.
DOL reaffirms work availability requirement
The District Court held that DOL’s rule requiring employees to have work available from their employer in order to take paid leave was in violation of the FFCRA. In the wake of the court’s decision, DOL issued certain clarifications but reaffirmed its position that to take leave, an employee must be absent from work at a time when he would otherwise be expected to be at work – that by definition the term “leave” means there is work to take leave from. So if an employer shuts down operations because of COVID-19 or furloughs its workforce, including that worker, then the worker cannot get paid leave under FFCRA, even if the employee personally meets the requirements, such as if he is in quarantine due to potential exposure to the virus.
Definition of “health care provider” is narrowed
Under DOL’s previous definition of “health care provider,” employers in the health care sector were able to broadly exclude employees from the FFCRA even if they did not personally provide health care services. Of the four aspects, DOL made its greatest concession on this point, limiting its definition of “health care providers” to those employees who are “capable of providing health care services,” which it further explained as diagnostic, preventive, treatment or other services “that are integrated with and necessary to the provision of patient care.” In its revised rule, DOL identified roles that are not considered health care providers, including IT professionals, building maintenance staff, human resources personnel and food service workers, among others.
DOL holds firm on intermittent leave rule
The original rule allowed employees to take paid leave only if the employer agreed and only for certain qualifying reasons. The District Court vacated the rule that the employer provide consent, stating that the DOL offered no justification for imposing such a requirement. In response, the DOL reaffirmed its position that employer approval is required to take intermittent FFCRA leave, explaining that the basis for this requirement “is consistent with longstanding FMLA [Family Medical Leave Act] principles governing intermittent leave.”
Small concession on written documentation requirements
The original rule called for employees to provide their employer with documentation justifying their request before taking leave. The District Court held that this requirement violated the FFCRA. In its revised rule, the DOL bowed to the court somewhat by stating the employee must give the employer supporting documentation “as soon as practicable.” But, the DOL stated, in most cases, this will be when the employee provides notice.
The takeaway for employers is that regulations related to COVID-19 continue to evolve. Employers must keep abreast of the changes and update their policies and procedures accordingly.
