Revised FFCRA Regulations: DOL Says “Thanks, But No Thanks”
September 14, 2020
We have been following the winding path of the federal paid leave laws since they were first introduced last spring. It began with the Families First Coronavirus Response Act (FFCRA), which included the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Click here to read our March 21 Client Alert on the EFMLEA, and click here for our March 21 Client Alert on the EPSLA.
The paid leave laws were passed by Congress and signed by the President in mid-March. Within weeks, Congress had amended both laws, and the Department of Labor had issued and then amended its regulations for both laws, filling gaps deliberately left by Congress and expanding on unclear provisions. Click here for our April 3 Client Alert on the FFCRA regulations. Two weeks later, the regulations were under attack in a federal lawsuit in New York, which yielded a court decision last month striking down four features of the regulations. Click here for our August 10 Client Alert on this case.
In the latest turn, last Friday, the DOL for the most part veered back to its original path, seeming to say “Thanks, but no thanks” to the New York Court on its three biggest challenges: the “work availability” requirement, employer consent for intermittent leave, and the definition of “health care provider.” However, the DOL did make adjustments to acquiesce in the court’s fourth point of contention, involving the timing of an employee’s documentation of the need for leave.
Given that the FFCRA and its regulations are slated to expire on December 31, there may not be time for any more turns in this road, and that would be good news for covered employers.
WORK AVAILABILITY REQUIREMENT
The biggest impact of the DOL’s initial regulations, in terms of expanding or contracting the reach of the paid leave laws, was the interpretation that employees could not qualify under any of the categories of leave provided in the EPSLA and EFMLEA if no work (including telework) was available from the employer.
In the first weeks after FFCRA, employment lawyers debated whether available work was required. That is, if an employer closed down due to COVID (either from a governor’s shutdown order or simply due to a slowdown in the marketplace), did that automatically disqualify the employee from paid leave even if he or she met all requirements for mandatory leave under the EFMLEA or EPSLA? The DOL answered that question clearly in its original regulations, stating that an employee is entitled to FFCRA leave only if the employer is still operating and has work for the employee to perform. In essence, the DOL reasoned that an individual cannot take a “leave of absence” from work that doesn’t exist.
That was a centerpiece of the New York Court decision in August, which invalidated the requirement. It forced employers into the quandary of how to undo their previously lawful disallowance of weeks or even months of paid leave. In response, the DOL not only refused to change this requirement, but the revised regulations shore it up. The DOL did, however, provide a significantly expanded explanation of its original interpretation.
Covered employers should breathe a huge sigh of relief on this one, and hope that DOL’s renewed position carries the day for the three and a half months left in the life of these laws.
EMPLOYER CONSENT FOR INTERMITTENT LEAVE
The next most significant interpretation by the DOL in its original regulations, and clearly the next most important challenge by the New York Court, was the requirement of employer consent for intermittent leave. The DOL took the same approach in response to this challenge, making no changes in its regulatory provisions, but expanding on its explanation of this interpretation. This also should provide relief for employers, if only because of the complexity of administering intermittent leave in the context of COVID-19. Of course, as was intended by the DOL to begin with, employers who are able to accommodate intermittent leave may do so under these laws, and because it constitutes qualifying leave with their consent, they may take the corresponding payroll tax credits if they allow it.
DEFINITION OF HEALTH CARE PROVIDERS
The most peculiar aspect of the DOL’s original regulations was its definition of “health care provider” for purposes of the exemption that was allowed in the FFCRA for such employees, and the New York Court was quick to challenge it. In response, the DOL narrowed its definition in the revised regulation, but not as far as the New York Court suggested.
The court decision was of grave concern to health care employers because it would exclude many employees who are directly involved in patient care. The DOL narrowed its original expansive definition, but it enlarged it from what the New York Court would have allowed, explicitly including anyone involved in direct patient care. The main concession to the court, and probably the biggest disappointment for healthcare employers, is that the new definition excludes support personnel. However, there remains some ambiguity in this regard. On the one hand, the DOL’s catch-all phrase for healthcare providers includes people who provide:
other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.
That would seem to include critical back-office jobs such as those that operate and repair the computer systems that are integral to patient care. On the other hand, the revised regulation also explicitly states that:
Employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
The revised regulations provide examples of the “integrated with and necessary” group, the hallmark being some form of contact with the patient, or direct involvement in preparation for patient care. It remains to be seen how close a support person’s duties must be to the patient care to bring the employee within the purview of this exemption.
WHEN NEED MUST BE DOCUMENTED
In the lone complete concession to the New York Court’s decision, the revised regulations make clear that an employee need only give notice of the need for leave “as soon as practicable,” and the documentation of such need may only be required “as soon as practicable.”
This Labor & Employment Alert is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions, please contact a member of Eckert Seamans’ Labor & Employment team, or any other attorney at Eckert Seamans with whom you have been working.