U.S. Department of Labor’s Revised FFCRA Regulations to Take Effect on September 16, 2020

09.17.2020

The U.S. Department of Labor’s Wage and Hour Division (“DOL”) has announced revisions to regulations that implement the paid sick leave and expanded family and medical leave (“EFML”) provisions of the Families First Coronavirus Response Act (“FFCRA”).  The revised regulations, which are effective September 16, 2020, clarify employee rights and employer responsibilities with respect to paid leave under the FFCRA. 

The revised regulations are issued in response to a U.S. District Court decision out of New York, which invalidated certain portions of the FFCRA regulations.  On August 3, 2020, the District Court invalidated the following rules: (1) the requirement under § 826.20 that paid sick leave and EFML are available only if an employee has work from which to take leave; (2) the requirement under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.  (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020.) 

After reviewing the District Court decision, the DOL reevaluated the invalidated portions of its regulations and reaffirmed its regulations in part, revised its regulations in part, and further explained its positions, as follows:

The Work-Availability Requirement

The DOL disagreed with the District Court’s invalidation of the work-availability requirement.  In the revised regulations, the DOL reaffirms that paid sick leave and EFML may be taken only if the employee has work from which to take leave.  The DOL reaffirms its interpretation that the FFCRA imposes a but-for causation standard, meaning the qualifying reason is the but-for cause of the employee’s inability to work (as opposed to other circumstances, such as a temporary or permanent closure to the employee’s worksite).  Further, the DOL clarified this standard applies to leave under all qualifying reasons. 

Intermittent Leave

The DOL reaffirmed its position that employer approval is needed for an employee to take FFCRA leave on an intermittent basis.  The DOL also reiterated that intermittent leave is permitted, with employer consent, when an employee is taking EFML and only when taking paid sick leave to care for a child whose place of care, or child care provider is closed or unavailable due to COVID-19.  The DOL reasoned intermittent use of paid sick leave for the other five qualifying reasons is not permitted, as the other qualifying reasons involve situations where the employee, or someone the employee is caring for, may have an elevated risk of being infected with COVID-19.  Therefore, intermittent leave is not permitted when the employee is at an elevated risk of transmitting the virus, which would be incompatible with Congress’ goal to slow the spread of COVID-19.  If an employee is teleworking and not entering the workplace, he or she may take intermittent leave for any of the qualifying reasons, with the employer’s consent. 

Notably, the DOL clarified employer approval is not required when employees take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day basis (e.g., hybrid learning schedule).  The DOL interprets that such leave is not intermittent, as the school is physically closed with respect to certain students on particular days, as determined by the school, not the employee.  When a child’s school has a hybrid schedule, for purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave.  The employee may take leave due to a school closure until that qualifying reason ends (i.e., when the school opens the next day), and then take leave again when a new qualifying reason arises (i.e., when the school closes again the day after that). 

By way of example, when an employee’s child is permitted to attend school on Monday, Wednesday, and Friday, the employee may take leave on Tuesday and Thursday without the consent of the employer, as each day would be a new qualifying reason to take FFCRA leave.  The same reasoning applies when an employee’s child attends in-person instruction for only half of each school day or attends in-person instruction every other week. 

Definition of “Health Care Provider”

The FFCRA allows employers to exclude employees who are “health care providers” and “emergency responders” from EFML and paid sick leave entitlements.  The purpose of this optional exclusion was to ensure the health care system retained the capacity to respond to COVID-19.  Under the revised regulations, “health care providers” include nurses, nurse assistants, medical technicians, and other persons who directly provide diagnostic, preventive, treatment services, or other services that are integrated with and necessary to the provision of patient care.  Additionally, the definition includes employees who are providing such services under the supervision, order, or direction of, or providing assistance to, health care providers.  Lastly, the definition encompasses employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care. 

The revised regulations provide examples of employees who provide services related to patient care, but who are not health care providers, including: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.  The revised definition of “health care provider” applies only for the purpose of determining whether an employer may exclude an employee from eligibility to take FFCRA leave.  The revised definition does not identify health care providers whose advice to self-quarantine may constitute a qualified reason for paid sick leave. 

In California, new legislation grants leave rights to employees who were exempted from FFCRA leave entitlements as health care providers and emergency responders.  Specifically, on September 9, 2020, California Governor Gavin Newsom signed Assembly Bill (AB) 1867, which adds Labor Code section 248.1.  This new law provides 80 hours of supplemental paid sick leave to employees excluded from the FFCRA as “health care providers” or “emergency responders.” This section expressly applies to public employers.

Notice and Documentation Requirements

The DOL’s previous regulations required employees to provide notice of leave and documentation prior to taking sick leave or EFML.  The revised regulations clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable, and need not be given prior to taking paid sick leave or EFML.

Employers should review their existing policies and practices with respect to FFCRA leaves, and ensure compliance with the revised regulations by September 16, 2020.  As always, our team of attorneys is available to assist in navigating the new COVID-19 leaves along with existing leave entitlements.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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