As we previously reported, on August 3, 2020, the U.S. District Court for the Southern District of New York (“the District Court”) invalidated several key portions of U.S. Department of Labor’s (“DOL”) rules and guidance concerning the Families First Coronavirus Response Act (“FFCRA”). Specifically, the District Court held that four limitations on the use of FFCRA leave which were promulgated in the DOL’s Final Rule, exceeded the agency’s rulemaking authority: (1) the “work-availability” requirement; (2) the definition of “health care provider”; (3) the requirement that an employee secure employer consent for intermittent leave; and (4) the requirement that documentation be provided before taking leave. 

The DOL recently issued revised regulations (the “New Rule”) which address the District Court’s ruling. The new regulations take effect on September 16, 2020 and provide, as follows:

“Work-Availability” Requirement
The New Rule reaffirms that employees may take FFCRA leave only when work is actually available to them. The FFCRA provides for paid leave only where an employee is “unable to work (or telework) for a qualifying reason.” The DOL’s Final Rule provided that employees are not entitled to FFCRA-paid leave benefits if the employee’s inability to work was due to their employer having no work available. The federal court vacated this “work-availability” requirement finding that the DOL did not provide sufficient justification for it.

The DOL has now reinstated the “work-availability” mandate and states that the employee’s qualifying reason for leave must be the “but for” cause of the employee’s inability to work. If an employee has a qualifying reason for leave, but also would not be able to work even in the absence of that reason because there is no work for him or her to do, the employee is not entitled to paid leave.

Definition of “Health Care Provider”
The FFCRA enables employers to exclude, at their option, “health care providers” from paid leave benefits. The Final Rule’s broad definition of “health care providers” included essentially any employee of an employer in the health care field. As a result, employers could deny leave to a large number of employees who did not actually provide health care services.

The District Court vacated the Final Rule’s broad definition and the term “health care provider” is now limited to how the FMLA defines it, which is 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.” 29 U.S.C. § 2611(6).

The New Rule adopts the FMLA definition of “health care provider” and expands upon that definition by including any other employee “who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The New Rule provides further parameters for determining which jobs are included, and which are excluded, from the latter portion of the “health care provider” definition.

Intermittent Leave
The DOL’s Final Rule allowed an eligible employee to take FFCRA leave on an intermittent basis when his or her child’s school or place of care was closed or unavailable due to COVID-19, but only with the employer’s consent. The District Court vacated this requirement of employer consent, finding that the DOL did not offer an appropriate justification for it.

In the New Rule, the DOL has reaffirmed the Final Rule’s provision that employees cannot take intermittent FFCRA leave without their employer’s consent.

The DOL clarified that employees taking FFCRA leave on certain days to align with their children’s hybrid in-person/virtual schooling does not constitute intermittent leave. Therefore, such arrangements do not require employer consent.  

Documentation Requirements
The DOL’s Final Rule required employees to provide documentation supporting the need for leave “prior to” taking leave. The District Court upheld the documentation requirement, but invalidated the requirement that such documentation be provided in advance.

Under the New Rule, documentation need not be given by the employee “prior to” taking emergency sick leave or family leave, but rather may be given “as soon as practicable.” However, the rule indicates that, in most cases, “as soon as practicable” will be when the employee provides notice of the need for leave.

Conclusion
The New Rule provides some clarity for unanswered questions resulting from the District Court’s holding. However, it is still expected that the District Court’s ruling might be appealed and further challenges to the regulations might be to come. In light of same, the guidance could be revised or changed in the future. We will continue to follow developments in this area and keep you apprised of same. Should you have any questions regarding the FFCRA or any other employment matter, ALG is here to assist you.