Department of Labor Updates Families First Coronavirus Response Act (“FFCRA”) Regulations
September 24, 2020
On April 6, 2020, the Department of Labor (the “Department”) published regulations in the form of a preliminary rule to implement the FFCRA’s Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). A summary of the preliminary rule is available in a previous alert. In an August 3, 2020 decision, the U.S. District Court for the Southern District of New York found that the Department had exceeded its statutory authority and found portions of the regulations invalid. In response, the Department posted revisions to the FFCRA regulations that took effect on September 16, 2020.
The revised regulations reaffirm that employees may take FFCRA leave only if work would otherwise be available to them; reaffirm that an employee must have employer approval to take FFCRA leave intermittently; revise the definition of “healthcare provider”; clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable; and correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
These updates to the regulations are summarized in relevant part below.
Under What Conditions are Employees Eligible for FFCRA Leave?
Employees are eligible for emergency paid sick leave (“EPSL”) if they:
1) Are subject to a federal, state or local quarantine or isolation order related to COVID-19.
2) Have been advised by a healthcare provider to self-quarantine for a COVID-19 related reason.
3) Are experiencing symptoms of COVID-19 and are awaiting diagnosis.
4) Experiencing any substantially similar condition specified by the Department of Health and Human Services.
5) Are unable to work because they are caring for an individual who is subject to a quarantine or isolation order or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
6) Are caring for a child if the child’s school or childcare provider is unavailable for reasons related to COVID-19.
Employees may also be eligible for expanded family and medical leave (“EFML”) if they are unable to work due to a need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable, for reasons related to COVID-19.
What Information is Included in the New Regulations?
1. Work-Availability Requirement
Under the April 6, 2020 regulations, qualifying reasons for leave 1, 5, and 6 (see above) specifically required that in order to take leave, the individual’s employer had to have work available for them to perform. Put another way, an employee would not qualify for leave even if they needed to care for their child whose school had closed due to COVID-19 if they had been furloughed or their place of employment was closed.
The New York court noted that the work availability requirement in the regulations only explicitly applied to three of the qualifying reasons for EPSL, not all six, and that the Department did not include sufficient explanation for including the work availability requirement at all. Accordingly, the New York court invalidated the regulations’ work-availability requirement.
In the September 16, 2020 version of the regulations, the Department provides additional explanation for why the language of the FFCRA supports the work-availability requirement and explicitly applies the work-availability requirement to all qualifying reasons for leave: an employee is not eligible for any type of FFCRA leave unless their employer would otherwise have work for them to perform.
2. Intermittent Leave
The April 6 regulations only allowed an employee who was reporting to their worksite to take intermittent FFCRA leave when the employee is taking leave to care for their child whose school, place of care, or childcare provider is closed or unavailable due to COVID-19, and then, only with the employer’s consent. An employee who was teleworking (and not reporting to the worksite) could take intermittent leave for any qualifying reason with their employer’s permission.
The New York court invalidated the Department’s requirement that employees need employer consent before taking FFCRA leave intermittently on the grounds that the Department had exceeded its statutory authority. Congress did not address intermittent leave in the FFCRA, and the Department did not include sufficient explanation for why intermittent leave should require an employer’s consent.
In response, the Department has offered a more extensive explanation for why employer approval is required for intermittent leave (noting that this balances the employee’s need for leave with the employer’s interest in avoiding disruptions, and is consistent with intermittent leave requirements under the FMLA) and reaffirmed that employer permission is needed for an employee to take FFCRA leave intermittently in all situations in which intermittent leave is permitted.
3. Definition of Healthcare Provider
Under the FFCRA regulations, employers may exclude employees who are healthcare providers or emergency responders from eligibility for EFML or EPSL. The New York court determined that the Department’s definition of “healthcare provider” in the April 6 regulations was too expansive. In response, the Department has considerably narrowed the definition of a healthcare provider. Under the revised regulations, a healthcare provider is defined as:
Any employee who is classified as a healthcare provider under the Family and Medical Leave Act (for example, licensed doctors of medicine, nurse practitioners, podiatrists, dentists, clinical psychologists, optometrists, etc.); or
Any other employee who is capable of providing health care services, meaning they 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 and, if not provided, would adversely impact patient care. This includes nurses, nurse assistants, medical technicians, and any other individuals who directly perform these services.
This definition also includes employees who are integrated into and necessary to the provisions of healthcare services, such as laboratory technicians.
Employees who do not provide health care services as described above are not healthcare providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
4. Providing Notice of Leave and Required Documentation
The revised regulations also correct an inconsistency regarding when employees must provide notice of leave and documentation supporting their request for leave. The regulations clarify that:
For employees taking EPSL, notice of leave may not be required in advance. Notice may only be required after the first workday (or portion thereof) for which an employee takes EPSL. After the first workday, the employer may require notice as soon as practicable under the facts and circumstances of the particular case.
For employees taking EFML, notice of leave is required as soon as practicable. If the reason for taking leave is foreseeable, it will generally be practicable to provide notice prior to taking leave.
The regulations further clarify that documentation supporting the employee’s need to take leave (specifically, the employee’s name, date(s) for which leave is requested, qualifying reason for the leave, and an oral or written statement that the employee is unable to work because of the qualified reason for leave) must be provided as soon as practicable, which in most cases will be when the employee provides notice of their leave as described above. As discussed in a previous alert, depending on the reason for the leave request, the employee may be required to provide additional documentation.
For assistance with these developing issues and to ensure compliance with FFCRA requirements, please contact Margaret H. Paget, Allyson E. Kurker, or Eileen Henderson at Kurker Paget LLC.