On August 14, we wrote a blog post that discussed the impact of a New York court case which invalidated several features of the Final Rule issued by the U.S. Department of Labor (DOL) to implement the Families First Coronavirus Response Act (FFCRA). At that time, it was unclear whether the court’s decision applied throughout the nation, or solely in the state of New York.
In response to the New York case, the DOL has revised several provisions in the Final Rule. The DOL has revised the Final Rule in the following areas.
- Are all health care providers ineligible for FFCRA leave?
The New York decision invalidated the definition of health care provider (health care providers are ineligible for FFCRA leave) because the definition was so broad it included employees not involved in patient care. The DOL revised its definition to limit the exception to those employees who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of health care. All other employees employed by a health care employer are entitled to FFCRA leave.
- Can an employer require documentation before approving FFCRA leave?
The Final Rule was also revised to clarify that the information the employee must provide the employer to support the need for leave must be provided to the employer as soon as practicable. The DOL also provide that notice of FFCRA leave may not be required in advance, and may only be required after the first workday for which an employee takes paid sick leave. After the first workday, the employer can require notice as soon as practicable under the facts and circumstances of the particular case. If the reason is foreseeable, it will generally be practicable to provide notice prior to the need to take leave.
With respect to the other provisions of the FFCRA which the New York court vacated, addressed below, the DOL elaborated on the rationale for the invalidated provision and stated that it does not intend to revise the provision.
- Is an employee eligible for FFCRA leave if the employer does not have work available?
The New York court decided that employees who are on a temporary layoff or other leave of absence may be eligible for FFCRA leave, even if the employer does not have work available. The DOL has reaffirmed in the Final Rule that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. Among other reasons, the DOL wrote that removing the work availability requirement would not serve one of the FFCRA’ s purposes, to discourage employees who may be infected with COVID-19 from going to work. If there is no work to perform, there would be no need to discourage ill employees from coming to work by providing paid leave.
- Must an employee obtain the employer’s consent for intermittent leave under the FFCRA?
The DOL reaffirmed that, where intermittent FFCRA leave is permitted, an employee must obtain the employer’s consent to take intermittent sick leave or expanded family and medical leave. Intermittent leave is not available if the leave is for medical reasons and returning to the workplace could spread the disease. However, intermittent sick leave and expanded family and medical leave due to the need to care for a child whose school or childcare is closed can be taken only with the consent of the employer. This rule applies to telework as well. The revised Final Rule states that when intermittent leave is not required for medical reasons, the employee’s need for leave must be balanced with the employer’s interest “in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.”
It is important to note that the employer consent condition does not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on a hybrid basis. The DOL stated that when a school is not offering in-person classes the school is considered closed with respect to certain students on the days selected by the school. Each day the school is closed is considered a separate reason for FFCRA leave and therefore, the FFCRA leave is not intermittent.
This same rationale applies to longer and shorter alternating schedules, such as when a child attends in-person classes for half of a school day, 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. Leave for partial days because the child’s school is not open for the child’s class all day, but only for a partial day, is not intermittent because the school is considered to be closed when the classes are not in session.
What Does the Final Rule Mean for Employers?
A final question remains as to whether the New York case applies nationwide. The DOL did not explicitly answer this question. However, in Q&A #102 the DOL stated that it viewed the decision as applying nationwide. In the revised Final Rule, the DOL provided detailed explanations for the two provisions it is retaining despite the New York court decision. We recommend that employers continue to comply with these two provisions despite the New York court case. Reliance on the revised Final Rule, published by the agency responsible for enforcing the FFCRA, should be a valid defense in the event of a claim. Although a court could arguably dispute the DOL’s decision to reaffirm these two provisions, it seems unlikely that a court would penalize an employer for relying on the DOL’s revised Final Rule.