On September 11, 2020 the U.S. Department of Labor (“DOL”) issued revised Families First Coronavirus Response Act (“FFCRA”) regulations in response to a federal court decision striking down certain portions of its previous regulations.

The FFCRA is a federal law that requires certain employers to provide: (1) two weeks of paid sick leave to employees who are unable to work for any of six qualifying reasons related to COVID-19, and (2) up to twelve weeks of expanded family and medical leave – at least ten of which must be paid – to employees who need to care for a child whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons. On April 1, 2020 the DOL issued temporary FFCRA regulations. Subsequently, on August 3, 2020, in response to a lawsuit brought by the State of New York challenging the regulations, a Southern District of New York court ruled that four parts of the regulations were invalid – specifically, the: (1) exclusion from coverage of employees whose employers do not have work available for them (such as those on furlough or temporary layoff), (2) requirement for employer approval for intermittent leave, (3) definition of “health care provider” for purposes of an employer’s ability to exclude such employees from FFCRA coverage, and (4) notice and documentation requirements for taking leave.

Below is a summary of updated regulations on each of these topics.

The Work-Availability Requirement

The revised regulations reaffirmed the DOL’s prior position that leave may only be taken under the FFCRA if there is work available to the employee from which to take leave. In response to the district court’s finding that the requirement was invalid because the work-availability requirement was only explicitly applied to three of the six qualifying reasons for FFCRA leave, the revised regulations now apply the work-availability requirement to all six reasons for leave, which, according to the revised regulations, was the DOL’s intent all along.

The revised regulations also explain the DOL’s reasoning for imposing this requirement. As an initial matter, the FFCRA uses the words “because of” and “due to” in identifying the six covered reasons for which an employee may take leave, which the Supreme Court has interpreted in the context of other statutes to require “but-for” causation. Under a “but-for” causation standard, leave is not available if the need for leave occurred due to another, non-COVID-19-related reason. For example, if there is no work to perform because the employer closed the worksite or conducted layoffs, any COVID-19-related reason would not be a “but-for” cause of the employee’s inability to work. In such a case, the regulations reiterate that leave is not available.

Nevertheless, the DOL emphasizes in the revised regulations that the work-availability requirement does not permit an employer to avoid granting FFCRA leave by claiming or creating a lack of work for an employee (such as furloughing an employee in response to a request for FFCRA leave). This is because the FFCRA contains anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking leave. Therefore, employers are prohibited from making work unavailable in an effort to deny FFCRA leave.

The Employer-Approval Requirement for Intermittent Leave

The revised regulations also reaffirm the DOL’s prior position that employer approval is required to take leave intermittently. The text of the FFCRA statute is silent with respect to intermittent leave, and the DOL thus exercised its rulemaking authority to address the issue by permitting intermittent leave in two situations:

1. Where an employee is working in-person in the workplace, only when taking leave to care for a child whose school, place of care, or child care provider is closed or unavailable due to COVID-19 (as allowing intermittent leave for other reasons – for example, because the employee is under a COVID-19-related quarantine or isolation order – would be incompatible with Congress’s goal of slowing the spread of COVID-19); and
2. When an employee is teleworking, for any of the six covered reasons for leave.

In either situation, the initial regulations stated that intermittent leave could only be taken if approved by the employer. The district court invalidated the employer-approval requirement on the basis that the DOL did not adequately explain its reasoning for imposing it. In response, the revised regulations explain the basis for the employer-approval requirement by stating that the employer-approval requirement is necessary to “balance[] the employee’s need for leave with the employer’s interest in avoiding disruptions.” The revised regulations also explain that requiring employer approval for intermittent FFCRA leave is consistent with its approach to intermittent leave under the Family and Medical Leave Act (“FMLA”).

Despite holding its ground on the employer-approval requirement, the DOL’s revised regulations go on to clarify what constitutes intermittent leave for purposes of a school closure, stating that “hybrid-attendance” situations constitute individual, separate FFCRA-qualifying events. As such, for example, if an employee requires leave every other week, only on certain days of the week, or only for a certain number of hours each day during the times when the employee’s child is not physically present in school, a new qualifying reason arises each time the school closes and, therefore, leave is not considered “intermittent” and employer approval is not required. On the other hand, if an employee whose child’s school is fully closed/remote learning only requests to take FFCRA leave for only certain periods of time, that would be a request for intermittent leave, requiring employer approval. Additional information about back-to-school and leave under the FFCRA is available on our blog here.

The Definition of “Health Care Provider”

The FFCRA excludes “health care providers” from eligibility for FFCRA leave. The revised regulations narrow the definition of “health care provider,” thereby expanding the number of employees who may be eligible for FFCRA leave.

The definition of “health care providers” included in the initial regulations was held invalid by the district court due to concerns that the definition was overly broad and prevented too many employees from using FFCRA leave. For example, under the original definition, many employees were excluded from coverage if they were employed at a hospital, medical school, or another place where medical services are provided, even if they were not in a role of providing patient care.

Under the revised regulations, it “is not enough that an employee works for an entity that provides health care services.” Instead, the revised regulations adopt a narrower definition of “health care provider,” which includes:

1. Employees who are “health care providers” under the FMLA – such as medical doctors, dentists, nurse practitioners, social workers, and physician assistants, among others; and
2. Employees who 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” – such as nurse assistants, medical technicians, and laboratory technicians, among others.

However, employees such as IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers do not fall under the “health care provider” exclusion and therefore may now be eligible for FFCRA leave.

The Notice and Documentation Requirements

Finally, the regulations have been revised to require that employees provide notice of the need for FFCRA leave as soon as practicable, rather than prior to taking leave, as was required under the prior regulations.

The FFCRA statute permits employers to require that employees provide notice: (1) after the first workday of leave (for paid sick leave), or (2) as soon as practicable, when the necessity for such leave is foreseeable (for expanded family and medical leave). The DOL’s initial regulations listed the documentation that must be provided in order to take leave and stated that such documentation must be provided “prior to” taking leave. The district court held that this timing requirement – that notice be provided “prior to” taking leave – is inconsistent with the statutory text of the FFCRA.

The revised regulations do not modify the statute’s notice requirements noted above. However, they do clarify that documentation need not be provided “prior to” taking leave, but rather may be provided as soon as practicable, which, the revised regulations note, will in most cases be at the same time as an employee requests leave but which may not necessarily always occur before leave begins.

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Due to the “time-limited nature of the FFCRA leave benefits, the urgency of the COVID-19 pandemic and the associated need for FFCRA leave, and the pressing need for clarity in light of the [court decision],” the revised regulations take effect on September 16, 2020. Therefore, employers should immediately ensure that their policies and practices are up to date and consistent with the above.

Our team is closely monitoring the DOL’s FFCRA guidance and regulations and will continue to provide updates as they become available.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.