The DOL Issues New Regulations on the FFCRA
Miller & Martin PLLC Alerts | September 14, 2020
Author: Stacie Caraway
On April 14, 2020, the State of New York filed suit in the United States District Court for the Southern District of New York (“District Court”) challenging certain parts of the temporary regulations which the Department of Labor (“DOL”) had issued regarding the Families First Coronavirus Response Act (“FFCRA”) on April 1, 2020 under the federal Administrative Procedures Act.
On August 3, 2020, the District Court ruled that four parts of the temporary regulations were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has “work from which to take leave;” (2) the requirement that an employee may use FFCRA leave intermittently “only with employer approval;” (3) the definition of an employee who is a “health care provider” whom an employer may exclude from being eligible to use FFCRA leave; and (4) the statement that employees who use FFCRA leave must provide their employers with certain documentation “before taking leave.”
In response to this August 3 decision, the DOL responded on Friday, September 11, 2020 by providing a few clarifying supplements to the April 1 temporary regulations in these four areas.
(1) The Department reaffirmed that paid sick leave and expanded family and medical leave under the FFCRA may be used “only if the employee has work from which to take leave.”
In other words, the “qualifying reason” for the leave must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he/she had a FFCRA qualifying reason. “If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the employee’s worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.” “‘Leave’ is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking ‘leave.’”
The supplemental temporary regulations also clarify that this requirement applies to all qualifying reasons to use paid sick leave and expanded family and medical leave. (In the original regulations, the DOL only referenced this requirement regarding three of the six stated reasons employees can use paid sick leave and expanded family and medical leave under the FFCRA).
(2) The Department reaffirmed that, where intermittent leave is permitted by the temporary FFCRA regulations, an employee must obtain his/her employer’s approval in order to use paid sick leave or expanded family and medical leave intermittently.
The explanatory section of this regulation also provides some helpful guidance regarding whether or not employer approval to use FFCRA leave intermittently is needed in several common scenarios employers have been facing since school has been back in session.
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 [as this term is defined under the “regular” FMLA]. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. 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. The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opens the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Under the FFCRA, “intermittent leave” is not needed in this scenario because the school literally closes and opens repeatedly.
The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.
This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is “intermittent” and would require his or her employer’s agreement.
(3) The definition of “health care provider” – as used in the section of the FFCRA which allows employers to exempt “health care providers” from being able to use FFCRA leave -- has been modified to match the definition provided in the “regular” FMLA regulations plus an additional category of individuals.
So, an employer may exempt a “health care provider” from being able to use FFCRA leave if they are --
(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) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
(c) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
(d) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement;
(e) Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
(f) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
The phrase “authorized to practice in the State” means that the provider must be authorized to diagnose and treat physical or mental health conditions.
An employer also may exempt a “health care provider” from being able to use FFCRA leave if they are “capable of providing health care services,” which are defined as “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”
To provide further guidance in this area, the DOL also includes several examples of employees who will not qualify as a “health care provider” (even if they are employed in the health care industry) such as information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. “While the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records— they are too attenuated to be integrated and necessary components of patient care.”
The Department also makes clear, however, that an employee does not have to be involved in direct patient care in order to be deemed a “health care provider.” Examples here include lab technicians or those who read x-rays or help read or interpret other diagnostic tests or even those responsible for transporting tissue or blood samples to and from laboratories for analysis.
(4) The Department confirmed that notice of the need for expanded family and medical leave must be given “as soon as practicable.” “That will generally mean providing notice before taking leave when the necessity for such leave is foreseeable.” Documentation the employee must give the employer to support the need for leave also should be provided to the employer “as soon as practicable” but need not be given prior to the leave. “In most cases, the documentation should be provided at the same time the employee provides notice” (but this is not required).
By way of reminder, for paid sick leave, notice may not be required in advance, and may only be required after the first workday (or portion thereof) during which an employee takes leave.
It remains to be seen whether the additional 53 pages of temporary regulations and explanation regarding the same will satisfy the concerns of those challenging the original regulations. (All of the FFCRA regulations have been designated as “temporary” since the FFCRA is only supposed to remain in effect until December 31, 2020.) So, we may see further litigation continuing to challenge them. But, for now, nothing has really changed regarding the original version, aside from that the definition of “health care provider” now is clearer in the context of defining which employees may be exempted from using FFCRA leave, and the new regulations also clarify that employers may not require employees to provide documentation regarding their need for leave prior to the leave. (The new regulations do not change the provision in the original regulations which provide that “the employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided,” however.)