The Department of Labor has amended regulations for the Families First Coronavirus Response Act (FFCRA) after a federal court struck down parts of previous regulations. The amended regulations take effect September 16, 2020.
BACKGROUND:
The FFCRA requires employers with fewer than 500 employees to provide paid leave to employees who are unable to work or telework because of certain COVID-related reasons. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave. Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the leave requirements. The law went into effect on April 1, 2020 and expires on December 31, 2020.
On April 1, 2020, the Department of Labor (DOL) issued regulations that defined key terms and made important clarifications to the law, including the following:
- Work-Availability Requirement: Entitled employees to FFCRA leave only if there was work available to them. For instance, if the employer sends employees home and stops paying them because of a lack of work, the employee wouldn't be eligible for FFCRA leave under the regulations.
- Definition of Healthcare Provider: Defined healthcare provider as anyone employed at any doctor's office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
- Intermittent Leave: Allowed employees to take leave intermittently for certain qualifying reasons but only if the employer agrees to it.
- Documentation: Required that prior to taking FFCRA leave, employees must submit certain documentation to the employer.
Shortly after the regulations were issued, the attorney general for the state of New York filed a lawsuit challenging each of the four provisions above, arguing that they unduly restrict FFCRA leave.
DISTRICT COURT RULING:
On August 3, 2020, a federal district court judge in New York struck down a number of the regulations' components. First, it found that the explanation provided for the work-availability requirement is insufficient. The judge also struck down the regulations' definition of healthcare provider as overly broad because it hinges entirely on the identity of the employer and includes employees whose roles have no connection with providing healthcare services. For instance, an English professor, librarian, or cafeteria manager at a university with a medical school could all be considered "healthcare providers" under the definition.
The judge ruled that the DOL was within its authority to limit intermittent leave to certain qualifying reasons. However, the judge struck down the part of the provision that required employer consent for employees to take the leave intermittently.
The judge also struck down the requirement that documentation be provided prior to the employee taking the leave.
AMENDED REGULATIONS:
In response to the judge's ruling, the DOL has issued amended regulations.
Work-Availability Requirement:
The amended regulations reaffirm that FFCRA leave may be taken only if the employee has work available to them. The DOL also clarifies that this requirement applies to all qualifying reasons to take FFCRA leave.
Definition of Healthcare Provider:
The amended regulations revise the definition of "healthcare provider" to mean employees who are healthcare providers under the Family and Medical Leave Act and other employees who are 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. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians, according to the DOL. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who don't provide direct healthcare services to a patient but are otherwise integrated into and necessary to the provision of those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are healthcare providers, according to the DOL.
An individual isn't a healthcare provider merely because their employer provides healthcare services or because the individual provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers aren't healthcare providers, even if they work at a hospital of a similar healthcare facility.
To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.
Intermittent Leave:
The amended regulations reaffirm that, where intermittent FFCRA leave is permitted by the regulations, an employee must obtain their employer's approval to take FFCRA leave.
However, in the preamble to the amended regulations, the DOL clarifies that the employer-approval condition wouldn't 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 wouldn't be intermittent. For instance, the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next. 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.
Documentation:
The amended regulations clarify that the information the employee must give to support the need for leave should be provided to the employer as soon as practical and need not be provided prior to taking FFCRA leave.
UPDATED FAQS:
The DOL also updated its FAQs to address the district court ruling (see questions 101-103, here) and the amended regulations (see questions 16, 21, 22, 56, 98, and 99, here). In the updated FAQs, the DOL says it interpreted the ruling to mean that the four FFCRA provisions in question were vacated nationwide on August 3, 2020. This may cause some confusion among employers, including raising questions about what rules apply prior to September 16.
COMPLIANCE RECOMMENDATIONS:
Employers should review the amended regulations in full and consider the impact on their policies and practices. Employers may also want to consult legal counsel about decisions that were made based on previous DOL regulations/interpretations. Since the amended regulations could also be challenged, monitor the situation closely for developments. Please contact your dedicated service professional with any questions.