Paid Leave and Coronavirus—Part XVI: DOL Issues New FFCRA Regulations To Replace Regulations Invalidated by New York Federal Court Last Month—And More

Seyfarth Synopsis: The Families First Coronavirus Response Act (“FFCRA” or the “Act”) went into effect on April 1, 2020. That same day, the Department of Labor (“DOL”) issued several dozen regulations further describing the obligations of employers, and the rights of employees, under the Act’s paid sick time (“PST”) and expanded family medical leave, i.e., paid family medical leave (“EFML”) mandates.

As previously reported,[1] on August 3, 2020, a New York federal court vacated certain aspects of the DOL’s regulations on the FFCRA impacting employee leave eligibility and entitlement.  On September 11, 2020, the DOL issued new regulations to replace the invalidated regulations and clarify related matters.  The new regulations[2] take effect upon publication in the Federal Register, which is projected to occur on Wednesday, September 16, 2020.

Below are the highlights of the new regulations:

The Work-Availability Requirement for Paid Leave Is Revived.

As we have previously reported, employees can use PST under the Act when the employee is unable to work (or telework) due to a need for leave because: (1) they are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) The employee is caring for an individual [note - need not be a family member] who is subject to an order as described in reason for use (1) or has been advised as described in reason for use (2) (as described above); (5) The employee is caring for a child of such employee if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions; and (6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

 By comparison, EFML under the Act can be used only where the employee is unable to work (or telework) due to a need for leave to care for the son or daughter of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.

The New York Court previously invalidated the DOL regulations to the extent they conditioned the availability of PST or EMFL on the employer having work available to the employee when the employee sought to take leave.  The new DOL regulations reinstated the so-called work-availability requirement for all forms of PST and EMFL, not just for EFML and PST reasons (1), (4), and (5) as was the case under the original regulations struck down by the New York Court last month.  Under the new DOL regulations, if the employer has no work available for the employee, then the employee cannot take PST or EMFL, even if the employee otherwise has a qualifying reason for using PST or EMFL. 

As noted by the DOL, the work-availability requirement is consistent with the plain meaning of the word “leave”:  an authorized absence from work.  Where there is no available work, there logically is no requirement for the employee to work and no need for leave.  The DOL noted that this result accords with how unpaid leave entitlements are counted under the federal Family & Medical Leave Act:  during any period of time where an employer has no work available for an employee, the employee does not draw down the 12-week unpaid FMLA leave entitlement. Employees without available work may pursue state unemployment benefits, but not PST or EFML, according to the DOL.

Intermittent Leave Again Requires Employer Consent.

In general, DOL regulations permit intermittent leave only in certain situations and only upon agreement with the employer in those situations. We further summarize these provisions, which are generally consistent with the intermittent leave discussion in the DOL FFCRA FAQs, here.[3]

The New York Court’s August decision invalidated the DOL’s regulations to the extent they required employer consent for an employee to take PST or EFML intermittently.  The new DOL regulations attempt to overcome the Court’s concerns by offering a more robust policy rationale for requiring employer consent to the taking PST or EFML intermittently.  Thus, employers have the right to permit or deny the taking of PST or EFML intermittently.  To reduce legal risk generally, however, employers should uniformly apply a rule either permitting or prohibiting intermittent PST or EFML.

Employees Must Provide Notice of Need for Leave and Supporting Documentation As Soon as Practicable.

The DOL regulations contain several provisions regarding appropriate documentation when an employee seeks to use PST or EFML. Specifically, the regulations note that the employee must provide their employer documentation containing the following information to substantiate the taking of PST or EFML: (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the employee is unable to work because of the qualified reason for leave.

Addressing the New York Court’s concerns that employees could not be required to provide documentation before taking PST or EFML, the DOL’s new regulations clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable. 

The new regulations also clarify when employees must provide notice of the need for leave, which is different for PST and EFML.  For PST, an employee cannot be required to give advance notice.  Rather, an employee may only be required after the first workday (or portion thereof) for which an Employee takes PST to provide notice.

On the other hand, an employee taking EFML must provide as soon as practicable, including in advance of taking foreseeable EFML.  The commentary to the new DOL regulations offers instructive examples:  If an employee learns on Monday morning before work that his or her child’s school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

Health Care Provider Exemption Redefined.

The DOL’s original regulations contain a definition and examples of the term “health care provider” for purposes of a “health care provider” who may be excluded by their employer from receiving PST or EFML under the FFCRA.  The New York Court took issue with the sweeping breadth of the DOL-defined “health care provider” exclusion and sent the DOL back to the drawing board.

For its remix, the DOL has revised the definition of “health care provider” excluded from PST and EFML entitlements as only employees who either:

1) meet the definition of “health care provider” the under the Family and Medical Leave Act regulation 29 C.F.R. § 825.125, which generally means licensed doctors of medicine, doctors of osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers and physician assistants, and also bona fide Christian Science Practitioners; or

2) 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.

Whether an employee meets the second definition above is inherently fact-specific and may depend upon, among other factors, job functions and the medical specialty at issue.

The revised “health care provider” exclusion is much narrower than the prior “health care provider” exclusion invalidated by the New York Court.  Employers who have relied on the health care exclusion to date should take a fresh look at the newly redefined exclusion.

Next Steps.

The new DOL regulations modify key thresholds for PST and EMFL eligibility for workers in the health care industry and leave entitlement for all covered employers.   In addition, employers should consider taking the following steps:

• Monitor potential legal challenges to the new DOL regulations.
• Monitor for DOL announcements regarding possible further updates to the regulations and FAQs on the FFCRA.
• Review existing workplace policies relating to a wide host of issues, including travel, work from home, and other policies as well as existing leave policies, and assess the potential effect of the FFCRA and the new regulations on those policies. If necessary, implement additional policies specifically tailored to FFCRA compliance.
• Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with the FFCRA and paid leave requirements generally. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest. To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

 

[1] Hyperlink to https://www.seyfarth.com/news-insights/paid-leave-and-coronavirus-part-xv-new-york-federal-judge-vacates-parts-of-dol-families-first-coronavirus-response-act-ffcra-final-regulations.html

[2] https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act

[3] Hyperlink to https://www.seyfarth.com/news-insights/paid-leave-and-coronaviruspart-x-families-first-act-updated-faqs-and-omb-reviewing-final-regulation.html