Late on Friday, September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (DOL) posted revisions to its guidance under the Families First Coronavirus Response Act (FFCRA) as to employees’ rights and employers’ responsibilities under the FFCRA’s paid-leave provisions. The FFCRA, which took effect April 1, applies to most employers with fewer than 500 employees. It provides workers with Emergency Paid Sick Leave of two weeks – up to 80 hours – of leave at full pay for a COVID-19-related illness or if they have to quarantine, and the same allotment at 2/3 pay if they have to care for a sick family member or children at home, or have to stay home with homebound children. The law also provides for an additional 10 weeks at partial pay as expanded FMLA because a child’s school or daycare provider has closed for COVID-19-related reasons.
These revisions followed a decision by the U.S. District Court for the Southern District of New York dated August 3, 2020, which found portions of the DOL’s previous regulations invalid. The new regulations address areas of the prior rules issued by the DOL last April that U.S. District Judge Paul Oetken invalidated after finding that the agency exceeded its authority. The new regulations issued on Friday reaffirm the DOL’s previous position that leave under the FFCRA can be taken “only if the employee has work from which to take leave.” Judge Oetken had ruled that the DOL was wrong in allowing employers to deny eligible employees FFCRA leave if their employers don’t have work for them to perform. The DOL nonetheless adhered to its previous position and offered a “fuller
explanation for its original reasoning regarding the work-availability requirement” that it adopted last April. The DOL revised its regulations to make clear, for every qualifying reason, that leave may not be used unless the employer has work available for the employee to perform but the employee cannot work due to the COVID-qualifying reason.
The DOL also reaffirmed that intermittent leave can only be taken with an employer’s approval and clarified the difference between intermittent leave and consecutive requests for leave. The new DOL regulations provide that, in the scenario where a 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,
such leave request would be for intermittent leave that would require employer approval. However, this employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be truly intermittent. In these situations, the DOL reasoned, “the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.” Thus the “employee may take leave due to a school closure until the qualifying reason ends (i.e., the school opens 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, according to the DOL, intermittent leave is not needed because the school literally closes and opens repeatedly.
In response to Judge Oetken invalidating the DOL’s prior broad definition of “healthcare provider” excluding many from FFCRA leave, the DOL now has revised its regulations to state that a healthcare provider is: (1) anyone deemed a healthcare provider under the FMLA, or (2) any employee who is capable of providing health services, meaning he or she is employed to provide diagnostic services, treatment services, or other services that are integrated with and necessary for the provision of patient care. An employer considering exempting healthcare provider employees from the FFCRA’s paid leave provisions should carefully review the revised
regulations as the DOL has provided examples of the types of employees who qualify as healthcare providers – and thus are not entitled to FFCRA leave – and those who do not.
The DOL also revised its regulations to clarify that advance notice may not be required for use of emergency paid sick leave and that such notice may only be required after the first workday or portion thereof for which the employee uses paid sick leave. After the first workday, notice should be provided “as soon as practicable” and may be provided by an employee’s family member or other spokesperson if the employee is unavailable. For leave due to school or daycare closures, notice should be provided as soon as practicable. If the closure is foreseeable, prior notice should be provided in advance of
the need for leave.
Finally, the DOL clarified that the documentation required to support leave requests need not be provided “prior to” taking paid sick leave or expanded FMLA, but rather may be given “as soon as practicable,” which, in most cases, will be when the employee provides notice.
These regulations become effective on September 16, 2020. Employers should keep in mind that the FFCRA, as clarified by these newly issued regulations, currently is set to expire on December 31, 2020. Should you have any questions as to compliance with the ever-evolving leave requirements of the FFCRA, please contact a member of our Labor and Employment Group.