Late last week, the U.S. Department of Labor (DOL) posted revisions of the regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The initial regulations implementing the FFCRA were released on April 1, 2020, but new regulations were made necessary by an August 3, 2020 decision by the U.S. District Court for the Southern District of New York. The revisions will go into effect when the regulations are published on September 16, 2020.
In announcing the revisions, DOL explained that the revisions:
- Revise the definition of "health care provider."
- Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them (known as the "work availability requirement").
Narrower Definition of "Health Care Provider"
Much of the revisions simply explained and reinforced the existing rules. One change, however, was in the definition of "health care provider." The revised definition now includes only employees who meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations (including physicians, osteopaths, physician assistants, nurse practitioners, and chiropractors in some instances) or who 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 which, if not provided, would adversely impact patient care. These employees are exempt from the FFCRA leave provisions. "Integrated with" includes bathing, dressing, feeding, and other tasks related to patient care, but does not include maintenance, food service (other than to patients), or administrative employees.
While this definition is narrower than the original FFCRA definition, it is still much broader than the FMLA exemption alone. Health care employers should note that this definition likely no longer includes their entire workforce, and such employers may have to reevaluate and take a position-specific approach to determining who is exempt.
Work Availability Requirement
Under the FFCRA, like the FMLA, an employee may only take leave if they would have been working but for the reason that qualifies them to take leave. In other words, if the employer would have otherwise furloughed employees, closed their operations, or laid off the employees, then an employee may not take leave under the FFCRA in order to be paid for time they would not have been working. To remove the work availability requirement would potentially result in the absurd results of an employee qualifying for paid leave when in the absence of the qualifying condition, the employee would not have had paid work.
This is not a change from the previous regulations, but merely a response to the New York court's decision vacating the previous regulation because it was not clear that it applied to all qualifying reasons. The new regulation doubles down on the previous rule and offers a clearer explanation and analysis to support the regulation and makes express that it applies to all qualifying reasons.
Intermittent Leave Explained
The regulations provide that employees may take intermittent leave, similar to that provided by the FMLA, and the only qualifying reason for intermittent leave is "to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19." In response to the New York court's criticisms of the employer consent provision of the intermittent leave regulations, the DOL responded by reaffirming and explaining in the new regulations that when applying the FFCRA intermittent leave policy, an employer and employee should use a similar framework to the FMLA regulations where the leave must be scheduled in a way that is minimally disruptive to business operations and balance the employee's need for leave with the employer's interests. The revision, then, enforces the employer consent requirement.
An interesting outcome of the DOL definition of a qualifying reason is that each day that a school is closed during an alternating or hybrid schedule will constitute a separate reason for FFCRA leave. The regulation gives the example of a school that is closed on Tuesdays and Thursdays and a parent that must stay home with the child on those days. In that case, because each day the school is closed is a separate qualifying reason, the parent would not need to take intermittent leave and so would not need employer consent.
New Documentation Timeframe
Last, the revisions slightly adjusted the requirement for documentation of the need for leave from the employee. The old regulations required employees to provide the documentation prior to taking leave. This language has been updated to bring this provision in accord with the rest of the Act, and now employees are simply required to provide documentation "as soon as practicable."
For more information on these regulations or other FFCRA and COVID-19 issues, please contact an attorney with the Firm.