DOL Moves Forward with FFCRA Revisions Due to New York Court’s Ruling

Updating a previous article, as of Friday, September 11, 2020 the U.S. Department of Labor (DOL) has indeed decided to move forward with issuing revised regulations under the Families First Coronavirus Response Act (FFCRA) after a New York federal district court struck down several of the previous provisions of the DOL’s final rule governing emergency family leave and paid sick leave last month. As noted at the time, this was to be expected and is an issue that we promised to closely monitor for any pertinent developments. As of September 16, 2020, when the DOL’s revised regulations officially went into effect coincident with their publishing in the Federal Register, those awaited updates have officially arrived. Although it should be noted that they will require an additional level of interpretation outlined below, especially for those employers who previously did not have employees who qualified for FFCRA leave but now do.
The NY federal district court’s August opinion invalidated the FFCRA regulations as it relates to the following:

• The requirement that an employer have work available in order for an employee to take leave under the FFCRA
• The requirement that employers agree to allow intermittent employee leave
• The requirement that employees provide documentation prior to taking leave
• The definition of health care providers who may be denied leave

With the issuance of the NY federal district court’s decision back in early August, a cloud of uncertainty began to surround the original FFCRA regulations, specifically regarding the extent to which employers located outside of the court’s district would need to comply. As a result, additional litigation was anticipated. The DOL, in response, issued its revised regulations by way of a temporary rule which now serves as the basis of this update.
The DOL also addressed the NY federal court’s decision head on in their newly issued FAQs #101-103 (added on September 11, 2020), specifically noting in #102 that “the Department considers the invalidated provisions of the FFCRA paid leave regulations vacated nationwide, not just as to the parties in the case” and commented on the new regulations further in #103, stating that the changes “are effective from September 16, 2020 through the expiration of the FFCRA’s paid leave provisions on December 31, 2020”.
In its revised regulations, the DOL:
Reaffirms that leave under FFCRA (emergency family leave and paid sick leave) may only be taken if the employer actually has work available for the employee
o  In its reaffirmation here, the DOL stressed the importance of standing firm in the distinction that work must first be available for leave to be taken, as “’Leave’ is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.”
o  The DOL goes on to note that it is impossible to remove the availability of work component from the equation here as that would make for “an illogical result”.
o  The DOL compares the situation to employees not receiving paychecks during the closure or furlough of a business due to the lack of paid work to perform. Allowing employees who qualify to take FFCRA leave to continue to be paid during a closure or furlough while their co-workers who do not have a qualifying reason to take FFCRA leave are not paid would surely create an unequitable and likely unintended result.  

• Reaffirms that employees must have employer approval prior to taking intermittent leave under FFCRA
  • The FFCRA itself does not directly address “intermittent leave” so the DOL is taking steps here to fill that void and offer some needed clarity.
  • The revised regulations note and expound upon a scenario in which an employee’s child participates in a hybrid-attendance schedule due to the pandemic in which “the school is physically closed with respect to certain students on particular days as determined by the school, not the employee.” In such an instance, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” 
    • It should be remarked that the same logic is applied by the DOL to “…alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.”
  • However, if a school is closed and an employee wants to take FFCRA leave “for certain portions of that period for reasons other than the school’s in-person instruction schedule”, that would not automatically be deemed permissible and would require employer approval.
• Provides an amended definition of “health care provider” to include only employees who meet the definition of that term under the standard Family and Medical Leave Act (FMLA) definition or those who are employed to provide diagnostic, preventive, or treatment services, or other services that are integrated with and necessary to the provision of patient care
  • In perhaps the most vital clarification of the FFCRA featured in the revised regulations, the DOL provided an amended definition of “health care provider” that is narrower in scope than what the original regulations illustrated. Notably though, the new DOL definition remains broader in scope than the definition of health care provider offered under FMLA.
  • In the DOL’s revised regulations, and in keeping with the NY court’s interpretation, the DOL has now made it clear that a “health care provider” is not solely focused on the employer but is more so based on the roles of specific employees themselves.
    • For example, a physician or nurse in a rural hospital would be considered a health care provider by the DOL’s updated definition but a janitor in that same rural hospital most likely would not. As such, the DOL has honed in on the employees who are “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with an necessary to the provision of patient care”, e.g., those employees whose actual duties and/or capabilities are directly related to the provision of health care services or are so integrated to the provision of health care services so as to adversely impact patient care if not provided.
    • The DOL’s temporary rule goes into further detail by calling out more specific examples of positions that would not qualify as health care providers and would thusly not be excluded from taking advantage of FFCRA leave. That list includes but is not limited to “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.” Even though some of these employees may perform certain services related to patient care they are not considered substantial enough from that standpoint to rise to the level of being a health care provider in the DOL’s updated opinion.
• Clarifies the required notice timeline for employees to provide their employers with FFCRA leave requests (along with any required supporting documentation) by using the as soon as practicable standard; Corrects an inconsistency regarding the notice timeline for expanded family and medical leave
  • The DOL also makes a slight concession here, aligning its guidance closer to the NY federal district court’s August ruling. In its revised rules, the DOL commented that documentation by an employee regarding a FFCRA leave request “need not be given ‘prior to’ taking paid sick leave or expanded family and medical leave, but rather as soon as practicable.” In most cases this “will be when the employee provides notice.”
  • The DOL’s revised regulations correct an inconsistency regarding the timing of notice for employees who take expanded family and medical leave as well. When “the need for leave is foreseeable, that will generally mean providing notice before taking leave”, i.e., when an employee finds out a few days before about an upcoming school closure, the DOL contends that the employee should provide notice to their employer prior to taking leave as soon as practicable to do so.  

Even with the issuance of the temporary rule, the DOL still has until October 2, 2020 to appeal the NY federal court’s decision so we will continue to stay tuned to any further developments. As of now, the DOL has made its stance clear, reasserting some of the initial points issued in its FFCRA guidance while also modifying others for the sake of clarity, most importantly as it pertains to the definition of a “health care provider”. It seems safe to say that the DOL will not appeal the court’s decision but stranger things have certainly happened in 2020…