COVID-19: DOL Revises FFCRA Regulations to Clarify Paid Leave Requirements in Response to Federal Court Decision

COVID-19: DOL Revises FFCRA Regulations to Clarify Paid Leave Requirements in Response to Federal Court Decision

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On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations implementing the Family First Coronavirus Response Act (FFCRA) after a New York federal court struck down key provisions of the original rule last month.  The amended rules, which take effect September 16, largely reaffirm and clarify the DOL’s original positions, while making some modifications consistent with the court’s ruling.

On August 3, Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York struck down four portions of the DOL’s original FFCRA regulations:  (1) “the work-availability” requirement, which states that an employee is only eligible for leave under the FFCRA if their employer has work for them to do; (2) the requirement that an employee can only take intermittent FFCRA leave with their employer’s consent; (3) the broad definition of “health care providers,” whom an employer may exclude from taking FFCRA leave; and (4) the requirement that employees provide certain documentation to their employer before taking FFCRA leave.  The DOL addresses each of these points in turn, mainly rebuking the court’s criticism and doubling down on its original interpretation of the statute.

The Work-Availability Requirement Remains Unchanged

First, the DOL reaffirmed that FFCRA leave may only be taken if an employee has work from which to take leave.  The DOL explained that the work-availability requirement is consistent with the FFCRA’s purpose: “discouraging employees who may be infected with COVID-19 from going to work,” because if there is no work—i.e., the employee is on furlough or their worksite is shut down—there would be no need to discourage potentially infected employees from reporting to work.  

Intermittent Leave Still Requires Employer Consent

The DOL also reaffirmed that an employee must obtain their employer’s approval to take FFCRA leave intermittently.  The agency noted that, unlike the FMLA, the FFCRA says nothing about intermittent leave, giving the DOL broad regulatory authority to establish guidelines regarding whether and under what circumstances intermittent leave may be taken.  The DOL concluded that requiring employer consent for intermittent FFCRA leave is consistent with the longstanding principle that granting such leave should not unduly disrupt the employer’s operations.

Notably, however, this employer consent requirement does not apply when employees take FFCRA leave in full-day increments to care for their children whose schools are operating under a hybrid schedule where students alternate between attending school in-person and learning remotely.  The DOL distinguishes leave taken for such hybrid arrangements from intermittent leave, viewing each day that school is closed as “a separate reason for FFCRA leave that ends when the school opens the next day.” 

Definition of “Health Care Provider” Narrowed

The most substantial change in the new regulations is the narrowed definition of employees who are “health care providers” and may be excluded by their employers from eligibility for FFCRA leave.  The original DOL regulation broadly focused on the type of employer that could exercise the exception (e.g., including IT professionals and accountants who work at a hospital).  The revised definition of “health care provider” is tailored based on employees’ specific functions, including only (1) employees who fall within the definition of health care provider under the FMLA (e.g., medical doctors, podiatrists, dentists, clinical psychologists, nurse practitioners, clinical social workers, physician assistants), or (2) employees who are “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”   

Documentation and Notice Requirements Clarified

The FFCRA itself permits employers to require employees to follow reasonable notice procedures to receive paid sick leave after the first workday of leave.  However, the original DOL regulations stated that employers could require that employees provide documentation regarding the employee’s need to take FFCRA leave prior to taking paid sick leave.  To remedy this inconsistency, the DOL clarified that documentation may be given “as soon as practicable,” which in most cases will be when the employee provides notice of the need for leave.

The DOL also clarified that employees must provide notice of the need for childcare related leave as soon as practicable.  If the need for leave is foreseeable (e.g., the child’s school district announces a shift to remote learning starting the next week), employees would likely need to provide notice before taking leave.

Next Steps

The employment team at WilmerHale will continue to monitor these developments and is available to provide guidance on modifying FFCRA procedures consistent with the new regulations.