By: Breegan O’Connor | Georgia Jolnik
Companies have been grappling with how to comply with the U.S. government’s Families First Coronavirus Response Act (“FFCRA”) after the August 3, 2020 decision from the U.S. District Court for the Southern District of New York (“FFCRA Decision”) that invalidated several portions of the prior DOL rule implementing the FFCRA.
On September 11, 2020, the U.S. Department of Labor (“DOL”) issued highly anticipated updates to its temporary rule implementing the emergency paid sick leave and expanded family and medical leave entitlements under the FFCRA. The revised rule, which was published on September 16, 2020, clarifies certain employer and employee rights and obligations under the FFCRA in light of the FFCRA Decision. Specifically, the revised rule (1) reaffirms that employees may take FFCRA leave only if there is work available from which to take leave, (2) narrows the DOL’s previous “health care provider” definition, (3) confirms that, where intermittent FFCRA leave is available under the DOL regulations, an employee must obtain employer approval to take such leave and (4) clarifies the timing for when an employee must provide documentation supporting an FFCRA leave request.
This guidance, however, is not limited to American companies. Israeli companies that have fewer than 500 employees in the U.S. may also need to comply with the FFCRA and should be cognizant of the revisions to the DOL rule.
The FFCRA Decision
On April 1, the DOL published regulations interpreting the emergency paid sick leave and expanded family and medical leave entitlements under the FFCRA. Shortly thereafter, the State of New York brought suit against the DOL, alleging that the DOL’s regulations exceeded its authority under the Administrative Procedure Act. In the FFCRA Decision, the Southern District of New York held that four components of the prior DOL rule were impermissible constructions of the FFCRA and vacated those portions of the rule.
First, the Court held that the DOL’s interpretation of the FFCRA’s work-availability requirement was an impermissible construction of the FFCRA. Under the prior rule, one requirement for taking leave under the FFCRA was that the employer had to have work available to perform at the time of the leave request. The Court found this explanation deficient and contrary to the text of the FFCRA.
Second, the Court held that the definition of “health care provider” in the prior DOL rule was overly broad. In contrast to the FFCRA, which generally adopted the federal Family and Medical Leave Act’s (“FMLA”) definition of “health care provider”, the prior DOL rule articulated a much more expansive definition that sought to include any employee of, e.g., any doctor’s office, hospital, health care center or similar entity. In other words, a hospital cafeteria worker, a janitor in a doctor’s office or even an English professor with a connection to a health care entity could meet the definition of “health care provider” as interpreted by the DOL. Given that employers may exclude “health care providers” from receiving leave benefits under the FFCRA, the Court held that the scope of the definition has “grave consequences for employees.” Accordingly, the Court held that who qualifies as a “health care provider” must be determined based on whether the specific employee is capable of providing health care services, not who their employer happens to be.
Third, the Court agreed with the State of New York that the intermittent leave provisions in the prior DOL rule were an impermissible construction of the FFCRA. The FFCRA did not address intermittent leave, so the DOL rule sought to fill the gap by permitting intermittent leave for a subset of qualifying conditions if both the employer and the employee agreed to such leave. The Court held that although prohibiting intermittent leave for qualifying conditions that correspond with an increased risk of infection (for instance, if leave is taken due to the employee having COVID-19 symptoms) is reasonable, there was no reason why employer consent was necessary to take intermittent leave for the remaining qualifying conditions, including to care for a child whose child care provider is unavailable due to COVID-19-related reasons.
Finally, the Court held that the documentation requirements in the prior DOL rule were inconsistent with the FFCRA. The prior DOL rule required that an employee submit documentation in support of a leave request prior to taking any FFCRA leave. The Court held this requirement was inapposite to the text of the FFCRA, which only requires “notice of [expanded family and medical] leave as is practicable” and for emergency paid sick leave, “reasonable notice” so that the employee can continue to take paid sick leave, where applicable.
Unfortunately, the Court did not specify whether the FFCRA Decision was intended to apply to all employers or only to employers in New York (or, more specifically, employers located in the Southern District of New York). As a result, following the decision employers were left to speculate on the scope of the ruling and its application.
DOL’s Revised Rule in Response to the FFCRA Decision
On September 11, 2020, the DOL issued updated guidance to its prior rule that directly addressed the FFCRA Decision and, in most cases, provided greater clarity on FFCRA leave for employers and employees (“Revised DOL Rule”).
In regards to the work-availability requirement, the DOL articulated that it never intended for the requirement to apply only to three of the qualifying reasons for taking leave. Therefore, the Revised DOL Rule now explicitly provides that for all of the qualifying reasons for which leave can be taken, “an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform.” In addition, the Revised DOL Rule asserts that the proper interpretation of the FFCRA is that an employee may take leave pursuant to the FFCRA “only to the extent that a qualifying reason for such leave is a ‘but-for’ cause of his or her inability to work.” In other words, there must be work from which leave can be taken; otherwise, the employee is not eligible to take leave under the FFCRA. The DOL underscored, however, that employers cannot evade their requirements under the FFCRA by altering an employee’s schedule and/or making work unavailable.
The DOL opted to compromise on the other two regulations vacated by the FFCRA Decision:
- The Revised DOL Rule amends the definition of “health care provider” to narrow the subset of employees that an employer may choose to exclude from FFCRA leave. Similar to the FFCRA, the revised definition generally adopts the FMLA definition. The Revised DOL Rule also identifies specific employees who are health care providers, and per the language in the FFCRA Decision, focuses on the role and duties of such employees rather than the identity of the employer.
- The Revised DOL Rule also clarifies the temporal scope of the leave documentation requirement by providing that such documentation may be provided as soon as practicable and need not be provided “prior to” taking FFCRA leave. The language in the Revised DOL Rule notes, however, that in some circumstances “as soon as practicable” could mean that notice and documentation are provided at the same time.
While the DOL was willing to compromise on certain portions of the rule, the DOL confirmed that, where intermittent leave is available to qualifying employees, an employer must approve intermittent leave requests in all cases. Even where the qualifying reason for taking FFCRA leave does not “correlate to a higher risk of spreading the virus,” as many of the qualifying reasons do, requiring leave in all cases where intermittent leave is permissible balances the employer’s need to minimize business disruptions with the employee’s need for leave. Therefore, it is appropriate for the employee to seek prior approval for intermittent leave even if the employee is seeking leave due to disruptions in childcare. However, the Revised DOL Rule makes clear that the employer-approval condition does not apply to employees who take leave in full-day increments to care for children whose schools operate on an alternate day or hybrid at-home / in-person schedule because such leave is not considered intermittent. This distinction may come as welcome news to working parents with school-age children.
Takeaways for Employers
The Revised DOL Rule resolves many of the outstanding questions raised by last month’s FFRCA Decision. Going forward, covered employers should take note of the following:
- Employers do not have to provide paid leave under the FFCRA if they legitimately do not have work for their employees (e.g., the employer closed its business or furloughed its employees);
- Employees cannot be required to provide notice or documentation prior to taking leave under the FFCRA unless it is “practicable” for employees to meet this deadline;
- Employers can opt to not provide FFCRA leave to employees who meet the revised definition of “health care provider”; and
- Employees must seek approval before taking intermittent leave under the FFCRA for any qualifying reason. However, where an employee takes full-day leave increments to care for children on an alternating-day school schedule, this is not considered intermittent leave, and therefore, prior approval for such leave is not required.
The DOL also clarified in an FFCRA Q&A updated on September 11, 2020 that the DOL considered the FFCRA Decision to apply nationwide. In other words, the portions of the prior DOL rule that were vacated and not reinstated by the Revised DOL Rule apply to all covered employers, not just those in the Southern District of New York. Accordingly, covered employers outside of New York should review their existing FFCRA policy and ensure it complies with the FFCRA Decision and the Revised DOL Rule.
If you have questions about the FFCRA or the Revised DOL Rule, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney.
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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.
 Also at issue was whether the work-availability requirement should only apply to certain qualifying leave reasons, as the FFCRA provides, or whether it should apply to all qualifying leave reasons, as the prior DOL rule provided.
 The FMLA defines a “health care provider” as: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”