By: Carl Habekost
On September 11, 2020, the Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA). Generally, the FFCRA requires employers with fewer than 500 employees to provide paid sick leave and expanded Family Medical Leave Act (FMLA) leave for certain COVID-19 reasons. The DOL revisions were a response to a New York federal court decision issued on August 3, 2020 in State of New York v. US Department of Labor, et al., 20-CV-3020 (S.D.N.Y. August 3, 2020) which held that several provisions of the Act were invalid. The revisions became effective on September 16, 2020, reaffirming with further explanation two provisions in the law and amending two other provisions. Specifically, the revised regulations:
- Reaffirmed that employees are NOT eligible for FFCRA leave if the employer has no work available. This rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
- Narrowed the definition of “health care providers” whom employers may exclude from the leave provisions of the FFCRA.
- Clarified when employers can require employees to provide notice of the need for FFCRA leave with supporting documentation.
- Reaffirmed that intermittent leave under the FFCRA can only be taken with the employer’s agreement.
The revised regulations reaffirm the DOL’s original position that FFCRA leave is not available to employees when the employer has no work available for them. Therefore, even if the employee has an FFCRA qualifying reason for leave, the employee is not eligible if the employer has no work for the employee to perform. The revised regulations clarified that the employer must have a legitimate, non-discriminatory reason for unavailable work. The rule also clarified the requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
The New York federal court decision issued on August 3, 2020, found that the DOL’s original definition of “health care provider” was overly broad because it covered employees whose roles had no causal relationship to health care services. Therefore, the revised regulations narrowed the definition and limited the exclusion of coverage to employees involved in the actual providing of medical care to essentially track the definition provided in 29 CFR 825.102 and 825.125. Under the revised regulations, the definition of “health care provider” includes doctors, nurses, nurse assistants, medical technicians, and laboratory technicians who process test results to aid in diagnosis and treatment. Excluded from the definition of “health care provider” are employees who do not themselves provide health care services such as computer professionals, building maintenance staff, human resource personnel, cooks and food service works, and records and billing employees. “Health care provider” is defined as physicians and others who make medical diagnoses and those capable of providing health care services. A health care provider must be employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care to qualify.
The DOL made two changes regarding the timing of employee notice and documentation. The revisions now state that notice for expanded FMLA leave (i.e., leave for childcare reasons) must be provided “as soon as practicable”, which normally means before the leave is taken. Similarly, supporting documentation of the need for FFCRA leave should be submitted “as soon as practicable”. According to the DOL, this means at the same time as the employee gives notice.
Finally, the DOL revisions confirm that the employee must obtain the employer’s permission in order to take “intermittent leave” under the expanded FMLA provisions. If the employer refuses to approve the request, the leave may not be taken intermittently.
What are the takeaways for employers? Employers should follow the revised regulations and confirm their leave policies accordingly. Employers should confirm that their leave request forms are consistent with the revised rules including the definition of health care provider. Employers previously treating their entire workforce as exempt under the “health care provider” exemption should review whether the revised definition now requires coverage for some employees. Further, employers should review their leave request forms to ensure they are consistent with the “as soon as practicable” language. Finally, because the DOL continues to refine its FFCRA guidance, employers should continue to monitor the DOL’s website regularly.