Who Needs to Know
All employers covered by the FFCRA.
Why It Matters
Employers must ensure that their policies and practices addressing FFCRA leave are consistent with the DOL’s revised regulations.
As we previously covered, on August 3, the U.S. District Court for the Southern District of New York (SDNY) struck down four parts of the regulations issued by the U.S. Department of Labor (DOL) implementing the Families First Coronavirus Response Act (FFCRA). Specifically, the decision invalidated the regulations’ availability of work requirement, intermittent leave permission requirement, broad definition of “health care provider” for purposes of leave eligibility, and pre-leave documentation requirement. The DOL considered the four provisions invalidated, and thus, vacated on a nationwide basis as a result of the August 3 decision.
On Friday, September 11, the DOL issued a new temporary rule revising its FFCRA regulations. Those changes are now in effect. A brief review of the changes is below.
Work Availability Remains a Requirement for FFCRA Leave
Before the SDNY decision, the DOL had taken the position that FFCRA leave was not available to those employees who were unable to work because their employer did not have work for them to do. The SDNY rejected the DOL’s position and ruled that an employee may be eligible for FFCRA leave even if the employer has no work for the employee or the employee is furloughed. In its revised regulations, the DOL stated it will not adopt the SDNY’s reasoning and will continue to interpret the FFCRA to require that FFCRA leave may be taken only if the employee has work from which to take leave. The DOL explained that “in the FFCRA context, if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.”
As a result, if a business is closed for any reason and there is no work available for an otherwise eligible employee, that employee will not be eligible for FFCRA leave. The DOL confirmed, however, that this interpretation does not permit an employer to avoid granting FFCRA leave by pretending to lack work for an employee. Employers may not, in any event, make work unavailable to an employee in an effort to deny FFCRA leave.
Permission Required for Intermittent Leave
The original FFCRA regulations provided that employer consent is required for an employee to take FFCRA leave intermittently to care for a son or daughter whose school or place of care is closed due to COVID-19 or, when working remotely, for any FFCRA-qualifying reason. In its August 3 decision, the SDNY ruled that employer consent would no longer be required for these reasons. In its revised regulations, the DOL rejected the SDNY’s viewpoint and wrote that employers can require employees to obtain consent in order to take intermittent leave under the FFCRA, stating that “[a]n employee who is teleworking (and not reporting to the worksite) may take intermittent leave for any of the FFCRA’s qualifying reasons as long as the employer consents.”
The SDNY decision did not strike the original regulatory requirement that an employee who is reporting to the worksite in person may take intermittent leave only for the qualifying reason that the employee is caring for a child whose school or place of care is closed. This is because an employee taking leave for one of the medically related COVID-19 reasons would have an elevated risk of infection, and should not be permitted to intermittently enter the workplace and risk infecting others.
The DOL also used its revised regulations to address a question on the minds of many employers and parents: how does the FFCRA work with regard to parents of children attending school on an alternate day or “hybrid” model (e.g., a school is physically closed to certain students on particular days as determined by the school)? In the revised regulations, the DOL stated that FFCRA leave taken in full-day increments (or even a half-day or other increments if that is the model the school has selected) is not considered “intermittent” leave and does not require employer permission. The DOL wrote that for “the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The 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). Under the FFCRA, intermittent leave is not needed because the school literally closes . . . and opens repeatedly.”
However, this situation “is distinguished from the scenario where the 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. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.”
Revised Definition of “Health Care Provider”
The FFCRA regulations allowed employers to exempt a “health care provider” from eligibility for FFCRA leave. “Health care provider” was broadly defined to be any employee of a health care provider, whether or not the employee provides health care-related services. The SDNY narrowed the definition of “health care provider” under the FFCRA for purposes of who may be excluded from leave. The DOL largely adopted the reasoning of the SDNY and wrote that an employee is a “health care provider” if he or she is “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery” – or is “capable of providing health care services,” including nurses, nurse assistants, and medical technicians, anyone providing such services under the supervision of such a doctor/nurse/technician, and anyone who is not directly interacting with patients but provides services integrated with and necessary to patient care. For purposes of the definition, “health care services” includes (1) diagnostic services; (2) preventive services; (3) treatment services; or (4) other services that are integrated with and necessary to the provision of patient care.
The DOL also confirmed that individuals who provide services that affect, but are not integral to, the provision of patient care, do not count as “health care providers” – for example, “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.”
Pre-Leave Documentation No Longer a Requirement
Finally, the DOL adopted the SDNY’s reasoning regarding pre-leave documentation and clarified that the documentation required for leave need not be given “prior to” taking FFCRA leave but rather may be provided as soon as practicable – in most cases, when the employee provides notice to their employer.
- Richard Gerakitis, Partner | richard.gerakitis[at]troutman.com
- Susan K. Lessack, Partner | susan.lessack[at]troutman.com
- Emily E. Schifter, Associate | emily.schifter[at]troutman.com
- Lee E. Tankle, Associate | lee.tankle[at]troutman.com
Compliments of Troutman Pepper – a member of the EACCNY.