DOL Issues Revised FFCRA Regulations Following Court Ruling
Labor & Employment Alert 09/14/20 Otto W. Immel, Alexis Barkis
The Department of Labor (“DOL”) has announced Revised Regulations, to be issued and effective September 16, 2020, following a ruling by Judge Paul Oetken with the Southern District of New York that the DOL’s April Regulations exceeded its authority. Substantively, the revised Regulations left the April Regulations almost entirely intact and mainly provided clarification and further explanation regarding its April Regulations.
Clarifications and Explanations
The New York Attorney General challenged various parts of the DOL’s April Rule, including (1) the provision denying workers benefits if their employers do not have work for them to perform; (2) the DOL’s interpretation of the health care provider exclusion; (3) limits on intermittent leave; and (4) documentation requirements.
Judge Oetken found that the DOL’s initial regulation that disallowed FFCRA leave if an employee’s employer did not have work for them to perform went too far. The DOL stood its ground in regard to this provision, and the Revised Regulations confirm DOL’s stance that FFCRA leave can be taken only if the employee has work from which to take leave.
The Revised Regulations also provide further explanation for its requirement that an employee get permission from their employer prior to taking intermittent or periodic leave under the FFCRA. The DOL explained that this condition of taking FMLA intermittent leave serves to avoid unduly disrupting the employer’s operations. While keeping the employer consent requirement intact, elsewhere the DOL noted that non-contiguous school closures (i.e. alternating days of in-person instruction and virtual learning determined by the school) is NOT intermittent leave. Each day that the school is “closed” to the student is a separate, self-contained FFCRA covered absence. The DOL explained that this is different from a parent choosing to engage in virtual learning, or only having childcare, on alternating days while in-person instruction is otherwise available, which WOULD require employer consent.
Judge Oetken also held that the DOL’s definition of a health care provider was too broad and cut off too many workers from taking leave. In response, DOL issued a revised definition of health care provider. The revised definition provides that a worker is a health care provider if the individual is “capable of providing health care services” which include “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” The DOL explained that the purpose of the exclusion was to ensure that health care services would not be understaffed during the pandemic and was not intended to apply solely to physicians and those who make medical diagnoses.
The DOL also clarified the notice requirements under the FFCRA. The DOL clarified that advance notice may not be required for use of emergency paid sick leave and that notice may only be required for the first workday or portion thereof for which the employee uses sick leave. After the first workday, notice should be provided as soon as practicable. For school closures, notice should be provided as soon as practicable. If the closure is foreseeable, advance notice should be given. The Revised Regulation also clarified that documentation substantiating the need for FFCRA should be provided as soon as practicable, and should generally be provided at the same time that the employee gives notice of the need for leave.
The DOL's revised ruling leaves its prior regulations mainly intact. Employers who have been denying FFCRA leave based on a broad construction of the health care provider definition should reassess according to the DOL’s revised definition. The Revised Regulations go into effect September 16, 2020.
Employers with questions about implementing FFCRA may contact their Quarles & Brady attorney or: