October 7, 2020
By: Kimberly Klein
On September 11, 2020, the U.S. Department of Labor (DOL) rejected, in part, a New York federal court’s findings invalidating the DOL’s final rule interpreting parts of the Families First Coronavirus Response Act (FFCRA), while clarifying and revising others. The differing views only add to the confusion as employers try to administer the paid sick and family leave law.
FFCRA provides paid sick leave for six qualifying COVID-19-related reasons and expands paid family leave to care for a child due to school or childcare closure or unavailability. Click here for our article titled 'Paid Sick and Family Leave In Response to COVID-19' (March 26, 2020).
On August 3, 2020, the trial court rejected DOL guidance concerning 1) work availability; 2) intermittent leave; 3) the definition of healthcare provider; and 4) documentation requirements. The Court held that the DOL’s requirement that work be available to take FFCRA leave was too restrictive; employer consent should not be required to take intermittent leave; the definition of healthcare provider was overly broad; and documentation should not be a prerequisite to taking leave.1
In turn, the DOL rejected the Court’s findings concerning work availability and intermittent leave, narrowed the definition of healthcare provider, and revised its guidance concerning documentation requirements. That the DOL merely clarified its regulations concerning work availability and intermittent leave only muddies the water for New York employers trying to comply with the statute.
In reaffirming the requirement that work be available for employees taking FFCRA leave, the DOL clarified that, by definition, leave is “understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” In responding to the Court’s holding that work need not be available for an employee to take leave, the DOL concluded that removing this requirement would lead to “perverse results,” as employers could furlough workers or shut down but still have to pay workers who had a qualifying reason for FFCRA leave.
The DOL did amend the final rule to clarify that the work-availability requirement applies to all six FFCRA “Qualifying Reasons,” namely workers who: (1) are subject to a coronavirus quarantine or isolation order; (2) have been advised by a health care provider to self-quarantine due to coronavirus concerns; (3) are experiencing symptoms of coronavirus and seeking a medical diagnosis; (4) are caring for an individual described in (1) or (2) above (not just limited to family members); (5) are caring for a child whose school or place of care is closed, or the child care provider of the child is unavailable, due to coronavirus precautions; or (6) are experiencing any other substantially similar condition specified by HHS in consultation with the Treasury and Labor Departments.
The DOL also reaffirmed the requirement that employer consent is necessary to take FFCRA leave intermittently. The DOL noted that nothing in the FFCRA provides for intermittent leave; nevertheless, the agency, which has broad regulatory authority to interpret the statute, issued guidance permitting workers to take intermittent leave where doing so would not increase the risk of spreading the virus. The final rule provides that workers may take intermittent leave, with employer consent, when: (1) teleworking; or (2) they return to the workplace and need to care for a child due to school or childcare closure or unavailability.
The DOL stated that the employer consent requirement to take intermittent leave is necessary to minimize disruptions to the employer’s operations. In addition, the Department concluded that since such consent is a precondition for a worker to telework, employer consent also should be required to take leave intermittently.
Importantly for many families, the DOL clarified that employees needing to take FFCRA leave on days their children are learning remotely in schools that have adopted a blended learning model do not need employer permission because the leave requested is not considered intermittent. As the DOL explained:
The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50… For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.
If a child attends school two days a week and learns remotely 3 days a week, the employee does not need employer permission to take FFCRA leave on the days the child learns remotely, provided there is no one else “suitable” to care for the child.
Definition of Health Care Provider
The changes made to the definition of health care provider are perhaps the most serious, as many in the industry may have denied FFCRA leave to groups of people who now, under the revised definition, are entitled to the leave.
Under the FFCRA, “health care providers” and “first responders” may be excluded from leave benefits to ensure that critical health and safety services are properly staffed during the pandemic. Before the court decision, the DOL had broadly defined “health care provider” to include:
Anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary education institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution…
Also included was any individual employed by an entity that contracted with the above.
The Court rejected this definition because it focused more on the identity of the employer than the kind of work performed. As a result, the Court found the definition overly expansive, potentially depriving of FFCRA leave “an English professor, librarian, or cafeteria manager at a university with a medical school.”
Here the DOL agreed with the Court and clarified that “health care provider” does not include individuals simply because they work for an entity that provides health care services. Instead, to be excluded from leave, the employee 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.”
Examples of employees who may be excluded from FFCRA leave include – in addition to licensed medical providers, nurses; nurse assistants, medical technicians and laboratory technicians – those who: (1) process samples, perform (or assist) in diagnostic tests, interpret tests; (2) perform screenings, check-ups, and counseling; (3) perform surgery or other invasive interventions; (4) administer or prescribe medication; and/or (5) provide services that if not provided would adversely affect patient care such as bathing, dressing, feeding, taking vitals and transporting patients and samples.
Conversely, information technology professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers would fall outside the definition and be permitted to take leave.
Finally, the DOL agreed with the Court that documentation does not have to be provided prior to FFCRA leave, but must be provided “as soon as practicable.” The revision will also clarify that such notice will apply to both paid sick leave and expanded family and medical leave.
Among the information employers are entitled to is documentation setting forth the employee’s name, the Qualifying Reason for leave, a statement that the employee is unable to work or telework because of the Qualifying Reason, and the dates of the leave. In addition, employees must provide documentation of the reason for the leave, such as the source of the quarantine or isolation order, name of the healthcare provider who advised the employee to self-quarantine, or notice posted by the child’s school concerning the closure.
Please see our prior alerts on the FFCRA:
1 The case is New York v. DOL, No. 20-CV-3020 (JPO), 2020 BL 289414, 2020 US DIST LEXIS 137116 (S.D.N.Y. Aug. 03, 2020).