U.S. Department Of Labor Issues Temporary Rule Updating FFCRA Regulations
On September 11, 2020, the U.S. Department of Labor (“DOL”) issued a temporary rule revising its regulations interpreting the federal Families First Coronavirus Response Act (“FFCRA” or the “Act”). The revised regulations, which went into effect September 16, respond to a recent decision by a New York federal district court decision finding the regulations partially invalid due to the DOL’s failure to adequately explain the justifications for certain limitations and exceptions.
The temporary rule doubles down on some of the language addressed by the court’s decision, while also revising other provisions of the FFCRA regulations. In particular, the DOL’s new regulations narrow the definition of “health care provider” for purposes of the Act, and relax the timing provisions for the regulations’ documentation requirements.
As we wrote about soon after the statute was enacted in March, the FFCRA provides employees of employers with fewer than 500 employees with the right to take paid leave for specified purposes related to COVID-19. Generally, employees are entitled to:
• Two weeks of paid sick leave, paid at 100 percent of the employee’s regular rate of pay, if the employee is unable to work because the employee is quarantined pursuant to a federal, state, or local government order or the advice of a health care provider, and/or is experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks of paid sick leave, paid at two-thirds of the employee’s regular rate of pay, if the employee needs to care for a quarantined individual or for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19, or if the employee is experiencing a substantially similar condition to COVID-19 (as specified by the Secretary of Health and Human Services); and
• Ten weeks of paid expanded family leave, paid at two-thirds of the employee’s regular rate of pay, where an employee needs to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
After the FFCRA was signed into law by President Trump on March 18, the DOL raced to issue regulations by the statute’s April 1 effective date. Those regulations, however, left many questions unanswered regarding the scope of the Act.
In response to this ongoing uncertainty, the DOL has released several iterations of interpretive guidance, including a web page containing answers to over one hundred “Frequently Asked Questions." (Most recently, for instance, the DOL confirmed that if an employee’s child’s school offers parents a choice between in-person learning and remote learning, an employee is not entitled to take FFCRA leave for “school closure” reasons if the parent elects a remote learning option in lieu of available in-person instruction at the child’s school.) Even with this guidance, however, employers have continued to puzzle over the interpretation of various provisions.
The S.D.N.Y.’s Decision
In a decision issued on August 3, 2020, a U.S. District Court judge in the Southern District of New York held that the DOL had failed to justify or explain various portions of the regulations, including:
1. Work Availability – i.e., the portion of the regulations stating that employees are not entitled to FFCRA leave if their employer has no work available for them. This provision, the court held, imposed a threshold for the necessary causal link between the employee’s absence from work and his or her need to take leave that the DOL had not adequately grounded in the statutory language.
2. Employer Consent for Intermittent Leave – i.e., the requirement that employees secure their employer’s permission to take FFCRA leave on an intermittent basis for expanded family leave purposes. The court found that the DOL had failed to justify this prerequisite.
3. Definition of “Health Care Provider” – Under the Act, employers may elect to exclude “health care providers” from the Act’s leave benefits. The DOL’s regulations had defined the term broadly to include not only those who provide health care directly, but also those who work for an institution that provides health care, as well as those who work for an employer that contracts with such an institution. The court pointed out that the broad definition set forth in the DOL’s regulations would exclude, for instance, an English professor teaching at a university that maintained a medical school.
4. Documentation Requirements – The regulations provide that employees may be required to show documentation supporting their need for FFCRA leave in advance of taking leave. The court held this timing requirement was inconsistent with the statutory language, noting that the Act permits employees to provide notice of the need to take leave “after the first workday” (for paid sick leave) or “as soon as practicable” (for expanded family leave). The practical effect of the DOL’s timing requirement for providing documentation, the court reasoned, was to require employees to present documentation of their need for leave before they are even required to notify their employer that they need to take that leave in the first place.
The Temporary Rule
In response to the court’s decision, the DOL issued a temporary rule on September 11. The temporary rule reaffirmed the first two provisions described above (relating to work availability and intermittent leave), but offered additional justifications and explanations for those provisions.
As to the second two provisions – the definition of “health care provider” and the documentation requirements -- the DOL revised its regulations to address the points raised in the court’s decision. The DOL will now interpret the term “health care provider” according to the definition set forth in the Family and Medical Leave Act (FMLA) regulations, as well as encompassing those “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”
Finally, the DOL made certain technical corrections to its notice and documentation requirements in response to the inconsistencies discussed in the court’s decision. An employee now must provide documentation supporting the need for leave “as soon as practicable,” generally when the employee provides notice of the need to take leave.
Takeaways For Employers
The DOL’s decision to stand firm on its requirements regarding intermittent leave and work availability, and to narrow the definition of health care providers under the Act, comes as welcome news to employers.
In addition, the DOL’s preamble to the temporary rule offers additional clarity to these requirements. For instance, while the DOL reiterated that it will continue to require the employer and employee to agree before an employee is permitted to take expanded family leave on an intermittent basis, it clarified that employees who need leave because their child’s school (like many) is alternating between remote and in-person instruction will not be considered to be taking “intermittent” leave. The DOL stated that in this circumstance, the need for leave effectively arises anew each time the employee’s child has a remote instruction day.
Further, in upholding its requirement that the employer must have work available for the employee before that employee is entitled to FFCRA leave, the DOL emphasized that an employee is not entitled to FFCRA leave unless an FFCRA-qualifying reason is a “but-for cause of the employee’s inability to work.” Thus, the FFCRA does not require employers to grant leave to employees whose circumstances may match one of the FFCRA-qualifying reasons but who “cannot work for other reasons, in particular the unavailability of work from the employer.” The DOL emphasized, however, that while an employee is not entitled to FFCRA leave if the employee “would have been unable to work regardless of whether he or she had a FFCRA qualifying reason,” an employer may not reallocate work away from a qualifying individual on a discriminatory or retaliatory basis in order to manipulate this prerequisite.
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Whether the courts will view the DOL’s temporary rule as sufficiently addressing the discrepancies discussed above remain to be seen. In the meantime, the temporary rule is a helpful addition to the DOL’s ongoing repository of guidance regarding the FFCRA’s terms.
If you have any questions about the temporary rule or the interpretation of the FFCRA’s provisions, please contact one of our experienced employment lawyers.