As
previously reported, the Families First Coronavirus Response Act (FFCRA) requires private
employers with fewer than 500 employees (and state/local government
employers regardless of size) to provide special paid emergency family
leave and sick leave related to COVID-19 in certain circumstances. However,
following an August 2020 court loss regarding portions of the prior FFCRA
regulations, the U.S. Department of Labor (DOL) on Sept. 11, 2020 issued
updated “temporary” regulations
refining its rules — effective Sept. 16, 2020.
The revised regulations reinforce FFCRA’s work-availability and
intermittent leave employer-approval requirements, narrow FFCRA’s health care
provider exclusion and clarify when employees must provide documentation
and notice supporting a leave request. The following is a summary of the
key changes.
- The new temporary rule reaffirms the DOL’s work-availability requirement
— that FFCRA leave is available “only if the employee has work from which
to take leave.” The DOL recognized the need to bolster its reasoning for
this condition after portions of the prior temporary rule, issued April 1,
2020, were invalidated by an Aug. 3, 2020 decision by the U.S. District
Court for the Southern District of New York.
As a result, per the DOL, the work-availability requirement under FFCRA
remains in effect, such that an employee will be eligible for
FFCRA leave only if the employer has work available. If work is not
available (e.g., due to circumstances such as a business closure due to a
stay-at-home order), the employer need not offer FFCRA leave. In making
this change, the DOL sought to avoid situations where an employer would be
obligated to provide employees with paid leave after the employer had been
forced to close its business operations or furlough workers.
- The DOL reaffirmed its prior rule and supplemented its reasoning that
intermittent FFCRA leave is available only upon an employer’s approval.
Noting that undue disruption of an employer’s operations is potential
grounds for denial of intermittent leave under the federal Family and
Medical Leave Act (FMLA), the DOL reasoned that requiring an employer’s
approval for intermittent FFCRA leave likewise balances the interests of
the employee and needs of the business. The DOL further noted that health
and safety concerns may be grounds for denial of intermittent FFCRA leave
where time off in that form might “exacerbate risk of COVID-19 contagion,”
stating that “[p]ermitting such an employee to return to work
intermittently when he or she is at an elevated risk of transmitting the
virus would be incompatible with Congress’ goal to slow the spread of
COVID-19.”
- The DOL narrowed the definition of “health care provider” under FFCRA in response to the Aug. 3 ruling, which held that such
exclusion was overbroad. The revised definition includes only employees who
(a) meet the health care provider definition under the FMLA, or (b) are
employed to provide “diagnostic services, preventative services, treatment
services, or other services that are integrated with and necessary to the
provision of patient care,” which, if not provided, would adversely impact
patient care.
Previously, the DOL interpreted the health care provider exclusion to
include, among other things, “anyone employed at” any doctor’s office,
hospital, health care center, clinic, medical school and other listed
entities “where medical services are provided.” Under the new regulation,
“[a] person is not a health care provider merely because his or her
employer provides health care services or because he or she provides a
service that affects the provision of health care services.” For example,
per the DOL, “IT professionals, building maintenance staff, human resources
personnel, cooks, food services workers, records managers, consultants, and
billers are not health care providers, even if they work at a hospital of a
similar health care facility.”
- The DOL amended the medical documentation requirement to permit
employees to provide documentation “as soon as practicable” instead of
“prior to” taking FFCRA leave. Similarly, the DOL clarified that while
advance notice is not required for paid sick leave under FFCRA, notice may
be required “as soon as is practicable” for paid emergency FMLA leave under
FFCRA (i.e., when caring for a child whose school or place of care is
closed or child care provider is unavailable for reasons related to
COVID-19). Per the DOL, this would “generally mean providing notice before taking leave” given that such time off is likely
foreseeable (emphasis added).
With FFCRA scheduled to expire Dec. 31, 2020, it is unknown whether the
DOL’s revised regulations will be subject to or withstand further judicial
scrutiny. In the meantime, covered employers may rely upon the revised
regulations, bearing in mind that there may be further challenges.
For answers to questions or additional guidance on how the revised FFCRA
regulations may impact businesses, employers can contact the authors, any
of the McGuireWoods COVID-19 Response Team members or their McGuireWoods
labor and employment contact.
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