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Monday, September 14, 2020

Coronavirus Update 9-14-2020: DOL issues revised FFCRA regulations; what’s changed and what hasn’t?


In early August, a New York federal district court judge issued an order invaliding several key provisions in the DOL's FFCRA regulations. Last Friday evening, the DOL responded with revised regulations that left most of its prior regulations intact, while also make a few common-sense amendments. 

Here's what the DOL did, and did not, change in response to the court's order, and why.

1/ The DOL reaffirmed that an employee may only take paid sick leave and expanded family and medical leave under the FFCRA if the employee has work from which to take leave, and if there is no work available, no leave may be taken.

According to the DOL, this interpretation is entirely consistent with the statute's requirement that an employer must provide its employees FFCRA leave to the extent that an employee is unable to work (or telework) due to a need for leave "because" of or "due to" a qualifying reason for leave. As summarized by the DOL, "[I]f there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave." Thus, "an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work." This interpretation avoids the perverse result of an employee being on furlough and not receiving a paycheck, but still qualifying for paid leave.

2/ The DOL reaffirmed that where intermittent FFCRA leave is permitted (i.e., for leave taken to care for a son or daughter because their school or place of care is closed, or their child care provider is unavailable, because of COVID-19), an employee may only take such leave intermittently upon the approval of his or her employer.

The DOL left these regulations untouched for two reasons. First, limiting intermittent leave to child-care-related absences furthers the policy of limiting employees who have potentially been exposed to COVID-19 from entering the workplace. Secondly, requiring employer approval is consistent with similar leave available under the FMLA, which should "avoid unduly disrupting the employer's operation.

3/ The DOL revised its overly broad definition of "health care provider" for purposes of the statutory exemption.

This change is the most significant one in the revised regulations. The original regulations permitted an employer to exempt anyone who worked in healthcare or related to healthcare, whether or not they were an actual health care provider. Thus, maintenance workers, or workers for medical device or pharmaceutical companies, could be deemed "exempt" from the FFCRA. The DOL has now tightened the definition to mirror the definition of "health care provider" in the FMLA, and now covers only physicians and others who make medical diagnoses, and those capable of and employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

4/ The DOL corrected an inconsistency about when an employee may be required to give notice to his or her employer of the need for expanded family and medical leave.

The DOL amended the FFCRA's regulations so that they are consistent with the FMLA's requirements for advance notice. Now, notice of the need for expanded family and medical leave  is required "as soon as practicable." (The regulations previously prohibited advance notice for any leave under the FFCRA.)

5/ The DOL clarified that the information the statute requires an employee to provide his or her employer to support a request for FFCRA leave must be given as soon as practicable.

The regulations now provide that an employee is required to give the required documentation for FFCRA leave "as soon as practicable," and not prior to taking the FFCRA leave.

These are common sense, business-friendly changes to the FFCRA's regulations. Moreover, given that the Act sunsets on December 31, 2020, it's unlikely (but not impossible) that New York or another state will take another crack at striking down the revised regulations before the Act's expiration.