Department of Labor Issues Revised FFCRA Regulations in Response to Court Ruling

By: Adam S. Chotiner, Esq.

The Families First Coronavirus Response Act (FFCRA) went into effect this past April and applies to all employers with 500 or fewer employees. In general, the FFCRA requires such employers to provide paid sick leave and paid Family and Medical Leave Act leave for certain specific COVID-19-related reasons.

Last month, the U.S. Department of Labor (DOL) issued revised regulations for the FFCRA. The revised regulations were in response to a New York federal court ruling that invalidated four provisions of the original regulations.

On August 3, 2020, a federal judge in New York struck down the following four provisions of the DOL’s original FFCRA regulations:

1. Health Care Provider Exemption: The definition of an employee who is a “health care provider” who can be excluded from paid leave benefit eligibility.
2. The Work Availability Requirement: The requirement that paid leave can be taken only where the employer has work available for the employee seeking leave.
3. Taking of Paid Leave on an Intermittent Basis: Employer consent was required for an employee to use intermittent leave.
4. Prior Notice and Documentation: Employees were required to provide employers with notice and certain documentation prior to taking leave.

On September 11, 2020, the DOL revised its regulations in response to the federal court decision. The new rules revise the definition of “health care provider” for purposes of the FFCRA exemption. The notice and documentation rules were amended to eliminate the requirement that notice and documentation be submitted prior to taking leave. As to the “work availability” and “intermittent leave” rules, the DOL has generally stood its ground, despite the federal court’s ruling.

Revised Health Care Provider Exemption Definition
The new regulations narrow the definition of “health care providers” whom employers may exclude from the leave provisions of the FFCRA. The federal court found that the DOL’s original definition was overly broad because it covered employees whose roles had no connection to the actual provision of health care services. Under the revised regulations, the term “health care provider” is now focused on employees who are involved in the actual provision of medical care services, and includes only:

• A licensed doctor of medicine, nurse practitioner, or other health care provider authorized to issue a certification under FMLA regulations; or
• Any other employee who “is 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.”

Under the revised regulations, the definition of “health care provider” includes nurses, nurse assistants, medical technicians and laboratory technicians who process test results to aid in diagnosis and treatment. Now excluded are employees who do not themselves provide health care services, “even if their services could affect the provision of health care services,” such as IT professionals, building maintenance staff, human resources personnel, cooks and food service workers, and records and billing employees.

The Work Availability Rule
Under the original DOL regulations, employers were allowed to deny leave under the FFCRA in certain circumstances when the employer did not have work available for the employee. Although the New York federal court struck down this work availability requirement, the DOL reaffirmed it. Therefore, employees may only take FFCRA paid leave if the employee’s inability to work is for a qualifying reason, not because there is no work available for the employee. If an employer does not have work available for an employee, the employee will not be eligible for FFCRA leave. However, the DOL did caution that the employer is not permitted to make work unavailable in an effort to deny FFCRA leave. Instead, the employer must have a “legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.”

Employer Consent Still Required for Usage of Intermittent Leave
The original DOL guidance required employer approval for taking FFCRA leave on an intermittent basis. The New York federal court invalidated that requirement, but the DOL has maintained the need for employer approval for employees to take intermittent leave under the FFCRA. The DOL has observed that there are certain limited situations where employer consent would not be required in the context of child care. For instance, when a child participates in hybrid learning where schools operate on an alternating schedule or where the school is physically closed with respect to certain students on particular days as directed by the school, the leave would not be considered “intermittent” because the need for leave is determined by the school, and not the employee. So an employee might be permitted to take FFCRA leave on Monday, Wednesday and Friday of one week and Tuesday and Thursday of the next, provided the leave is actually needed to care for the child during the time and no other suitable person is available to do so. Absent these limited circumstances, intermittent leave will still require employer consent under the new guidelines.

Timing of Employee Notice and Documentation
The original DOL regulations required employees seeking paid sick leave to provide notice and documentation to their employer prior to taking leave. The new guidance affirms that notice is required but clarifies that it may be provided after the first workday (or portion thereof) for which the employee is taking sick leave. After the first workday, it is reasonable for an employer to require notice “as soon as practicable under the facts and circumstances.” Similarly, employees taking paid Family and Medical Leave Act leave are required to provide notice “as soon as practicable,” and if the “leave is foreseeable” then the employee is generally required to provide notice prior to the need to take leave.

The guidance also clarifies that documentation no longer needs to be submitted in advance of leave. Instead, documentation must be provided “as soon as practicable,” with the DOL envisioning that “in most cases” the employee will submit documentation along with the notice.

What all this Means for Employers
Health care employers should take immediate action to address how the change in the definition of “health care provider” affects their operations. More specifically, health care employers need to evaluate their employment positions to determine which positions are now beyond the scope of exclusion from FFCRA leave rights.

Moreover, all employers should update their FFCRA leave policies and procedures to conform to the new notice and documentation requirements; confirm the work availability requirement; and apply the intermittent leave rules consistent with the employer consent requirements, including childcare scenarios where consent is not needed.

Employers who deny leave based on work-availability reasons may have such decisions challenged based on the DOL’s direction that the employer must have legitimate, non-retaliatory reasons for denying leave if work is not available. To minimize legal risk, employers should consult with experienced employment counsel before making such a decision.

This summary does not constitute legal advice, and employers should obtain the advice of an attorney to address questions or concerns about the applicability of the FFCRA to their business.

Be well and stay safe.

Adam S. Chotiner
Attorney and Counselor at Law
Board Certified in Labor and Employment Law

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