The United States Department of Labor’s Wage and Hour Division (“DOL”) issued a News Release and revisions to the temporary Families First Coronavirus Response Act (“FFCRA”) rules effective on September 16, 2020 that address the portions of the FFCRA a New York District Court held were invalid in State of New York v. U.S. Department of Labor, No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020).
The DOL’s full revisions may be found here: https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act
We previously reported that the District Court’s decision issued in State of New York v. U.S. Department of Labor struck down several aspects of the United States Department of Labor’s (“DOL”) regulations for paid leave under the “FFCRA”. See https://www.lawpf.com/post/court-decision-may-impact-how-employers-address-ffcra-leave-of-employees-with-school-age-children
The four provisions struck down by the District Court were the: (1) exclusion from benefits of employees whose employers do not have work for them; (2) requirement that employees secure consent for intermittent leave for certain qualifying reasons; (3) definition of who qualifies for the healthcare provider exemption; and (4) requirement that documentation be provided before taking leave. The DOL’s responses to these four provisions are summarized below.
1. Employees whose Employers do not have Work for Them are Excluded from Benefits
The DOL reaffirmed that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. The DOL opined that removing the work-availability requirement would lead to perverse results.
For example, if an employer closes its business and furloughs its workers, none of those employees would receive paychecks during the closure or furlough period because there is no paid work to perform. If an employee with a qualifying reason took FFCRA leave even when there was no work, he or she could take FFCRA leave and continue to be paid during this period, while his or her co-workers would not. The DOL did not believe Congress intended such an illogical result.
However, the DOL agreed with the District Court in there being no basis to apply the work-availability requirement only to some of the qualifying reasons for FFCRA leave and § 826.20(a)(3), (a)(4) were amended to state explicitly, as § 826.20(a)(2), (6), and (9) do, that “an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform.”
2. Employees are Required to Secure Employer Consent for Intermittent Leave
The DOL reaffirmed that employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent FFCRA leave is permitted, which is consistent with longstanding FMLA principles governing intermittent leave. The DOL reasoned that when intermittent leave is not required for medical reasons, the FMLA balances the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave and the FFCRA regulations already provide that employees may telework only where the employer permits or allows. See § 826.10(a).
Since employer permission for telework is a precondition under the FFCRA, the DOL found it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.
The DOL also explained the definition for “School Closing” for hybrid-learning under the FFCRA, advising each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. An 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 in such hybrid circumstances because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly.
3. The Definition of “Health Care Provider” is Revised
The DOL revised the definition of “health care provider” under § 826.30(c)(1), for purposes of the employer’s optional exclusion of employees who are health care providers from FFCRA leave, to mean employees who are health care providers under 29 CFR 825.102 and 825.125, and other 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. Specific examples were added for each category.
The DOL clarified that individuals who provide services that affect, but are not integrated into, the provision of patient care are not covered by the definition of “health care provider” because employees who do not provide health care services as defined in paragraph (c)(1)(i)(B) are not health care providers. The DOL revised § 826.30(c)(1)(iii) to provide examples of employees who are not health care providers. For example, information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers are excluded from the definition of “health care providers” and thus, such employees are entitled to FFCRA leave if warranted.
The DOL explained that while the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records— they are too attenuated to be integrated and necessary components of patient care. This list is illustrative, not exhaustive.
Please see the potential exclusion in the “Other Considerations” section below.
4. Employees Taking FFCRA Leave Must Give the Required Information to the Employer “as Soon as Practicable”
The DOL revised § 826.100(a) to clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable, which in most cases will be when notice is provided under § 826.90. An employer may require an employee to furnish as soon as practicable: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work.
The DOL also revised § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer. If the need for leave is foreseeable, it will generally mean providing notice before taking leave.
For example, 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.
Other Considerations
Notably, the paid sick leave and expanded family and medical leave provisions of the FFCRA apply only to certain public employers, and private employers with fewer than 500 employees. Therefore, private employers with 500 or more employees are not covered and do not have obligations under either statute.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC.
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