Employers received welcome guidance from the U.S. Department of Labor (DOL), when the DOL recently revised its Families First Coronavirus Response Act (FFCRA) regulations to respond to a recent court ruling partially invalidating those regulations. But while the DOL's new regulations provide needed clarity, the regulations also raise more questions about the FFCRA's coverage.
The FFCRA, passed in March 2020, requires certain employers to provide paid sick leave and emergency family leave for reasons related to COVID-19. Regulations were quickly drafted by the DOL to meet the law's April 1 effective date. Then, the New York Attorney General brought suit against DOL, challenging those regulations. On August 3, a U.S. District Court Judge agreed that the DOL's regulations were flawed. In short, the New York federal district court invalidated the regulations, because the court found the DOL's explanations lacking or inconsistent with the statute itself. (See our previous legal update about the court's decision, here.)
This ruling left the employer community in limbo. Did the New York court's ruling apply on a nationwide basis? Should employers continue to follow the DOL's FFCRA regulations? Fortunately, the DOL responded by issuing revised regulations that became effective on September 16.
The court's decision and the DOL's revised regulations address four primary subjects: (1) which employees qualify as "health care providers," permitting their employers to deny FFCRA leave under the heath care provider exemption; (2) whether employees may use FFCRA leave when their employer has no work available for them; (3) whether employers must consent to employees' request for intermittent leave; and (4) when employees must provide notice and documentation of the need for FFCRA leave.
As a reminder, the FFCRA requires employers with less than 500 employees to provide their employees with up to 80 hours of emergency paid sick leave for a variety of COVID-19 related reasons and up to 12 weeks of extended family and medical leave for employees needing to care for children whose school is closed, or place of care or child care provider is unavailable. To learn more about the FFCRA, visit Lane Powell's COVID-19 Resource Center.
The DOL Narrows Who Is a "Health Care Provider"
The FFCRA allows employers to exclude employees who serve as "health care providers" from using FFCRA leave. The DOL's April 1 regulations based the health care provider definition on an employer's operations, stating that any employee of an entity that provides health care services, or that contracts with such facilities to provide services or maintain or support operations. However, the New York court observed that the DOL's definition did not focus on whether a particular employee is capable of providing health care services.
The DOL responded to the court's ruling by revising its definition of "health care provider" to focus on an employee's role rather than an employer's operations. Under the new definition, employees provide health care services if they: (1) directly provide health care services; (2) provide health care services at the direction or under the supervision of employees who directly provide health care services; or (3) provide services that are integrated with and necessary components to the provision of health care services, even if they do not provide direct patient care. Additionally, under the new regulations, employees may be health care providers even if their position does not require a license, registration, or certification.
The regulations define "health care services" as "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." The DOL provided the following examples of each service:
[ "mediaLibrary" : "DOL-Examples-Services-Table" ]
The DOL expressly recognizes that the following positions qualify as health care providers: physicians, nurses, nurse assistants, medical technicians and lab technicians. Conversely, according to the DOL, the following employees do not qualify as health care providers, and therefore will be eligible for FFCRA leave: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers.
Health care facilities will likely be left with more questions than answers under the new regulations because many positions are simply not addressed by the DOL's regulations. Health care employers will need to conduct a role-specific analysis to determine whether a particular position qualifies as a health care provider.
Interestingly, in its published Q&As, the DOL encourages employers to be judicious and flexible on when to exclude a "health care provider." For example, the Department suggests an employer may exempt these employees from taking FFCRA leave to care for a family member, but grant FFCRA leave when these employees need leave because they are sick with COVID-19. (See FAQ Answer to Question 56).
The DOL's new health care provider definition is vulnerable to challenges from both sides. On the one hand, it is broader than the Family and Medical Leave Act (FMLA)'s rules, which may lead to a renewed challenge from New York state or new challenges from other states. On the other hand, health care facilities may challenge the rule as too narrow, focusing particularly on that portion of the rule that specifically excludes certain positions that they believe are critical to patient care from ever being qualified as health care providers.
The DOL Reaffirms the FFCRA's "Work-Availability" Requirement — This Time With Reasoning
Under the law passed by Congress, employees were eligible to use FFCRA leave if they are "unable to work (or telework)" due to reasons related to COVID-19. The DOL interpreted this to mean that an employer must have work available for employees to perform before employees would be eligible to use FFCRA leave for a qualifying reason. The New York federal district court struck down this regulation. The court stated that the DOL applied the work-availability requirement inconsistently among the qualifying reasons and provided circular reasoning to justify the rule. The court reasoned that so long as employees experience a qualifying reason for FFCRA leave, employees are entitled to use leave, even if the employer has no work available for employees to perform. The court's decision on the work-availability requirement was particularly troubling for employers who had already laid off employees before the law became effective on April 1, because many of those employees had already applied for and received unemployment benefits.
The DOL reaffirmed the work-availability requirement in its updated regulations, signaling that it anticipates further challenges and is prepared to defend its regulation. The DOL clarified that this work-availability requirement applies to all qualifying reasons for using FFCRA leave. The DOL remains steadfast that employees can use FFCRA leave only if their employer has work for employees to perform. However, the new rule also provides further justification. The DOL explained that if employees have no tasks to perform due to circumstances other than a qualifying reason for FFCRA leave, employees would have no work from which to take leave. The DOL also explained that this interpretation is consistent with its "experience administering and enforcing other mandatory leave requirements," including the FMLA, which the FFCRA expanded to include Emergency Family Medical Leave. For example, the DOL explained that under the FMLA, if an employer's activities temporarily cease while an employee is on FMLA leave, then that time period does not count against the employee's FMLA leave entitlement. See 29 C.F.R. § 825.200(h). The DOL reasoned that the result should be no different under the FFCRA simply because the leave is paid.
The DOL also addressed and dismissed concerns that the work-availability requirement is a loophole leading to employer abuse. First, the DOL explained that employers cannot simply remove work from employees to avoid granting FFCRA leave, because such a move would violate the statute's anti-retaliation provisions. Second, the DOL pointed out that employers have little incentive to do so because FFCRA leave is fully funded through federal tax credits.
Because the DOL has now doubled down on the work-availability requirement, this issue is ripe for further challenge in the courts.
The DOL Reaffirms That Employers Must Consent to Intermittent Leave
The DOL regulations adopted on April 1 allowed employees to use FFCRA leave intermittently under certain circumstances, but only with employer consent. Those reasons include any qualifying FFCRA reason while teleworking or to care for a child whose school or place of care has closed due to COVID-19. The New York federal district court held that the employer-consent requirement was invalid because the DOL provided no explanation for this requirement.
In response, the DOL reaffirmed the employer consent requirement and explained its reasoning. In short, the DOL justifies the employer-consent requirement for intermittent leave under the FFCRA because it is consistent with the FMLA's longstanding principle that foreseeable intermittent leave should avoid "unduly disrupting the employer's operations." See 29 CFR 825.302(f). Under the FMLA regulations, employer consent for intermittent leave is not required if it is medically necessary, and this consent requirement would apply only when intermittent leave is not medically necessary.
Additionally, DOL clarifies that "intermittent leave" under the FFCRA excludes leave taken in full-day increments due to a school or childcare facility operating on a hybrid-attendance basis. For example, if a school operates an alternative schedule where it is closed on Mondays and Wednesdays, leave on those days is not intermittent leave and does not require employer consent.
As with the work availability requirement, because the DOL has not changed its overall position on intermittent leave, there may be future challenges to these regulations.
The DOL Clarifies and Refines the Notice and Documentation Requirements
The April 1 FFCRA regulations stated that employees must provide documentation supporting their FFCRA leave before taking leave, and described the type of documentation that employers can request. The New York federal court concluded that this advance documentation requirement was not consistent with the FFCRA statute or other FFCRA regulations, and invalidated the regulation's requirement to this effect. In the revised regulations, the DOL clarifies that employees must provide documentation as soon as practicable, and not necessarily before taking leave. This documentation requirement is now consistent with the notice requirement under the FFCRA regulations.
Importantly, under the revised regulations, the notice requirements for emergency paid sick leave and emergency family and medical leave are slightly different. Employers may require notice for emergency paid sick leave only after employees use the first day of leave, at which point, employers can require notice as soon as practicable. For emergency family and medical leave, employees must provide notice as soon as practicable, which typically will include advanced notice for foreseeable leave.
What Do the Revised FFCRA Regulations Mean for Employers?
Employers should consider taking the following steps to comply
with these new regulations:
- Employers in the health care industry should reevaluate which
employees qualify as "health-care providers" under the
new regulations. Some employees may no longer be considered
"health care providers" and must be allowed to use
available FFCRA leave if they otherwise qualify. Health care
employers should also educate managers and other employees involved
in managing time off and leaves of these changes. Notably, if these
employers have less than 50 employees, they can explore using the
small employer exemption, which allows small employers to exempt
employees from FFCRA leave for school and childcare closures, under
- Review their FFCRA policies and practices to ensure they
properly comply with the employee documentation and notice
requirements (or prepare FFCRA policies if they do not have
- Learn about the refined intermittent leave rules on
alternate-day closures. Note that full day leaves for school or
childcare closures do not necessarily require employer
- Review the DOL's updated FAQs, which reflect these changes,
- Stay tuned! The DOL's explanations suggest it anticipates further challenges to these rules, so there may be more to come.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.