FFCRA Update: DOL Revises Rules In Response to Court Ruling

By Christopher Morehead

As previously discussed, a New York court recently struck four provisions of the Families First Coronavirus Response Act (FFCRA). The ruling left many employers outside of New York wondering the extent to which the decision impacted them. Significantly, the Department of Labor (DOL) acknowledged that it viewed the ruling as applying to all employers covered by the law, not just those in New York.

Accordingly, and in response to the decision, the DOL issued a temporary rule on the evening of September 11, 2020, which goes into effect on September 16, 2020.  In the rule, the DOL doubled-down on its work-availability requirement, clarified its position on intermittent leave under the FFCRA, amended the notice requirements for taking leave, and narrowed the health care provider exemption. Here are the key takeaways:

1. The DOL Reinforces the “Work Availability” Requirement for FFCRA Leave

As a brief reminder, the DOL’s position since April has been that employees do not qualify for FFCRA leave if there is no work available for them due, for example, to a business closure in response to COVID-19. However, the New York court struck the work availability requirement, reasoning – at least in part – that the DOL’s analysis on that issue was deficient.

In the new rule, the DOL did not back down from its initial position on the work availability requirement, and also offered additional rationale for its position. Among other things, the DOL recognized that “leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” The DOL also explored the world of possibilities without the work availability requirement, including, for example, a situation where an employer closes operations but is required to provide paid leave to employees with qualifying reasons for FFCRA leave, but not to employees who don’t have a qualifying reason for leave. Accordingly, the DOL reasoned that the work availability requirement must stand.

For now, the bottom line is that the DOL’s position on the work availability requirement is unchanged. It is presently unclear, however, whether and to what extent courts will continue to challenge the DOL on this issue.

2. The DOL Offers Additional Rationale for Employer Consent Requirement for Intermittent Leave

The DOL’s initial rules stated that employees seeking to take permissible forms of intermittent leave under the FFCRA required employer approval. The New York court struck that rule because, again, it found the supporting rationale deficient.

In response, the DOL now offers additional reasons for this rule, including focusing on traditional FMLA rules, which permit scheduling intermittent leave for foreseeable absences in a manner that is minimally disruptive to the employer’s operations.

However, the DOL also commented on leave necessary for situations where the employee has a child who is enrolled in a school with adjusted or alternating schedules. For example, a child is enrolled at a school that alternates between remote-learning (Tuesday, Thursday) and in-person learning (Monday, Wednesday, Friday). According to the DOL, an employee in this situation may take FFCRA leave on Tuesday and Thursday without the employer’s permission (provided no one else is available to care for the child). The DOL’s reasoning is that a full single day of leave is not intermittent, because each day the school is closed during the school week (Tuesday, Thursday) is a separate school closure, meaning those days constitute a separate reason for FFCRA leave.

Notably, however, the DOL’s position on school and child care closures that are closed indefinitely is unchanged: the employee still needs employer approval before taking intermittent leave (for example, if the employee wants to work partial days on an intermittent basis).

3. DOL Revises Documentation and Notice Requirements to Take Leave

The New York court struck the DOL’s notice and documentation rules to the extent they required employees to provide their documentation supporting the need for FFCRA leave before taking leave.

In response, the DOL revised its rules to state that, with respect to documentation required for leave, employees may comply with that rule if they provide the documentation “as soon as practicable.”

The takeaway here is that, to the extent employers were rigidly enforcing the requirement to provide documentation before the employee takes FFCRA leave, employers should amend any such practices or leave request forms accordingly.

4. DOL Narrows Health Care Provider Exemption

As previously discussed, the FFCRA initially provided a broad “health care provider” exemption, allowing many employers in the health services industry to bypass the requirements of the law, even where employees had virtually zero role in the provision of health services. For that reason, the New York court struck the exemption, leaving only the traditional “health care provider” definition under the FMLA intact.

In response, the DOL revised its definition of a “health care provider,” to include employees who either meet the definition of that term under the existing FMLA regulations, or are “employed to provide diagnostic services, preventative 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.” This definition is still relatively broad, but also significantly narrower than the original rule.

Notably, the new regulation identifies specific categories of employees who continue to be exempt from taking FFCRA leave:  nurses; nurse assistants; medical technicians; employees who directly provide diagnostic, preventative, treatment, or other integrated services; employees providing such services under the supervision, order, or direction of, or providing direct assistance to a health care provider; and employees who are otherwise integrated into and necessary to the provision of health care services (e.g., laboratory technicians).

Importantly, the DOL also specifically identifies employees excluded from the exemption (i.e., those who do not provide health care services), such as IT employees, maintenance staff, HR personnel, cafeteria workers, records managers, consultants, and billers.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.

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