On September 11, 2020, the DOL published revisions to regulations relating to the FFCRA, which provides emergency paid sick leave (EPSL) and expanded paid FMLA (EFMLA) leave for COVID-19-related employee leave. The DOL’s revisions clarify workers’ rights and employers’ responsibilities under the FFCRA in response to an August 3, 2020, ruling from the US District Court for the Southern District of New York, which invalidated portions of the DOL’s FFCRA regulations. (We addressed that case in the August 18, 2020, edition of Compliance Corner.) The DOL also published a news release and added three new questions and answers to its FFCRA questions and answers webpage (Q&As 101, 102 and 103), and clarified other FAQs relating to the revised regulations. Below is a summary of the issues and the changes made by the revised DOL regulations.
The District Court found that four portions of the DOL’s FFCRA rules were invalid:
- The standard indicating that EPSL and EFMLA are available only if an employee has work from which to take leave. This has created a “work availability” standard, which basically means an employee cannot take FFCRA leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply.
- The provision indicating that an employee may take FFCRA leave intermittently only with employer approval.
- The definition of an employee who is a “‘health care provider,” whom an employer may exclude form FFCRA leave eligibility.
- The requirement that employees provide their employers with certain documentation before taking FFCRA leave.
Before addressing those four issues, it’s important to note that the DOL first clarifies that the District Court’s ruling applied nationwide, not just as to the parties in the case and not just to employers in New York. Therefore, the revised regulations apply nationwide.
Work Availability Standard
To better understand the revised regulations on the work availability standard, it’s important to remember that the District Court had two reasons for invalidating the this portion of the rule: the unreasoned and inconsistent application of the requirement to only three of the six reasons for FFCRA leave; and the DOL’s insufficient explanation of the reason for imposing this standard at all.
In response, the revised regulations explain that the work availability standard applies to all qualifying reasons to take EPSL and EFMLA under the FFCRA. In addition, the revised regulations clarify that FFCRA-leave may be taken only if the employee actually has work from which to take leave. Specifically, 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 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.
Thus, the DOL explains and reaffirms that an employee may take EPSL or EFMLA leave only to the extent that any qualifying reason is the cause of the employee’s inability to work. The DOL also explains that the work availability standard is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when the employee would otherwise have been working. In other words, if an employee is not expected or required to work, the employee is not taking leave. The DOL explains that this interpretation is also consistent with the DOL’s long-standing interpretation of the term “leave” in the FMLA (which the EFMLA amended), and gave an example of the FMLA regulations that state that if an employer’s business activity has temporarily ceased and employees are not expected to report to work, that the time that the employer’s activities have ceased do not count against the employee’s FMLA entitlement.
Based on that analysis, the DOL also reiterated that employers may not make work unavailable in an effort to deny FFCRA leave because altering an employee’s schedule in an adverse manner due to the employee’s request for or use of FFCRA leave would violate the FFCRA’s anti-retaliation provisions. Thus, overall, the DOL interprets the FFCRA to grant relief to employers and employees where employees cannot work because of the enumerated reasons for leave, but not where employees cannot work for other reasons, in particular the unavailability of work from the employer. Therefore, the work availability standard remains in place, and is applicable to all six reasons for taking FFCRA leave.
On the second issue, the revised regulations reaffirm that where intermittent FFCRA leave is permitted, an employee must obtain their employer’s approval to take that leave intermittently. The revised regulations provide further explanation to justify their reaffirmation, including the idea that current FMLA provisions and standards also support employer approval of intermittent leave (under the original FMLA, Congress expressly authorized employees to take FMLA leave intermittently but only under certain circumstances — one of which is where there is an agreement between the employer and employee). The DOL points out that in contrast to the FMLA, Congress said nothing about intermittent leave in the FFCRA; instead they granted the DOL broad regulatory authority to effectuate the EPSL and EFMLA (which, again, amends the FMLA) and to ensure consistency between the two laws.
The DOL further explains that while the DOL recognizes that the FFCRA is intended in part to allow eligible employees to take paid leave for certain COVID-19-related reasons, unrestricted intermittent leave would undermine a statutory purpose of combating the COVID-19 public health emergency. For example, giving employees taking leave to care for individuals with COVID-19 unrestricted flexibility to go to work on days of their choosing could increase the risk of COVID-19 contagion. Thus, employer approval is necessary. The revised regulations include other examples to reaffirm and further explain the employer approval requirement for intermittent leave.
Definition of “‘Health Care Provider”
Generally speaking, the FFCRA permits employers to exclude healthcare providers from some or all forms of EPSL or EMFLA. The original DOL rule defined “‘health care provider” broadly, focusing on the types of employers that could use the exemption. The District Court, though, noted that any definition of “‘health care provider” must require a “minimally role-specific determination” of who is capable of providing healthcare services, and should focus on the skills, roles, duties or capabilities of the employees. This would require position/role-specific analysis of whether someone met the definition of health care provider before deciding whether FFCRA leave is permitted.
In response, the revised regulations’ definition of “health care provider” focuses on employees whose duties or capabilities are directly related to the provision of healthcare services or are so integrated with those services so as to adversely impact patient care if they were not provided. Thus, it would include employees whose roles provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care.
More specifically, the revised regulations include only those who are “health care providers” under existing FMLA regulations, which includes doctors of medicine and osteopathy and other capable of providing healthcare services. The definition includes a list of professions, including podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants and certain Christian practitioners. The DOL asserts, though, that for purposes of the FFCRA, the scope of healthcare services must be broader to account for the context of a pandemic, since more types of healthcare provider employees’ absences would be even more disruptive.
So, drawing upon a different definition (borrowed heavily from the Pandemic Hazards Preparedness and Advancing Innovation Act of 2019), the DOL identifies four buckets of healthcare services. The first is diagnostic, which includes taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and the interpretation of test or procedure results. The second is preventive, which includes screenings, check-ups and counseling to prevent illness, disease or other health problems. The third is treatment, which includes the performance of surgery or other physical treatments or procedures, prescribing or administering medication, physical therapy, and providing or assisting in breathing treatments. The fourth is integrated services, which are those that are necessary to diagnostic, preventive or treatment services and, if not provided, would adversely impact patient care (including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures and transportation of patients or samples).
In conjunction with those four buckets, and focusing on the employees’ roles (rather than the type of employer), the revised regulations specifically identify several types of employees who may be excluded from taking FFCRA leave. Those include nurses, nurse assistants, medical technicians and other employees providing diagnostic, preventive, treatment or other integrated services. Those also include employees providing such services under the supervision, order or direction of, or providing direct assistance to, a healthcare provider, and employees who are otherwise integrated into and necessary to the provision of healthcare services, such as laboratory technicians who process test results necessary to diagnosis and treatment.
The regulations then specifically exclude from that definition those employees who do not actually provide such healthcare services (even if their services could affect the provision of healthcare services), including IT professionals, building maintenance staff, HR personnel, cooks, food service works, records managers, consultants and billers. The regulations also include a list of typical work locations where employees providing healthcare services may work, including a doctor’s office, hospital, healthcare center, clinic, medical school, local health department or agency, nursing or retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. That list is not exhaustive, and employees can be healthcare providers even if they do not work at a location or worksite included on that list.
Employee Notification and Substantiation
The District Court invalided the DOL’s original regulations to the extent it required employees to provide documentation prior to taking FFCRA leave, since that made several of the FFCRA’s provisions unworkable. In response, in the revised regulations, an employee need only provide documentation as soon as practicable, which in most cases will be when the employee provides notice of the need for FFCRA leave. The regulations provide further, though, that if EFMLA is foreseeable, such as in instances where the employee learns in advance that the child’s school or place of care will be closed, the DOL anticipates that the employee generally will provide notice before taking the leave.
With the exception of the definition of “‘health care provider,” the DOL’s revisions basically reaffirm their original regulations (while providing additional justifications and explanations). Therefore, the administration of FFCRA leave remains substantially the same, except with respect to healthcare provider exceptions and advance employee notification requirements, as explained above. The revisions are effective September 16, 2020, and remain in effect through the expiration of the FFCRA’s paid leave provisions on December 31, 2020. Employers should review the changes to FFCRA, and implement them into their leave policies.
Revised DOL FFCRA Rules
DOL FFCRA Questions and Answers
DOL News Release