DOL Revises FFCRA Regulations in Response to New York Federal Court’s Decision

Late Friday, September 11, 2020, the Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA).  The new regulations are in response to an August 2020 New York federal court decision that invalidated four key aspects of its previous FFCRA regulations.  The Department of Labor has clarified that it considers the New York court decision applicable across the country.

The four regulations at issue:

1.  The “work-availability” requirement: Requirement that FFCRA leave is available only where the employee had work available to be performed.

• What the Court said: The DOL could not require that employees actually be working, or the employer to have work for them to do, in order to take FFCRA leave.
• How the DOL responded: The DOL stood firm on its original position that an employer must have work available for an employee in order for the employee to be eligible for FFCRA leave. In other words, the employee’s FFCRA reason for leave must be the sole reason the employee is not working, and reinforced that employees on furlough or temporary layoff status are more appropriately directed to contact their unemployment agency, rather than seek paid leave from their employer.
• What this means: Although the DOL’s revised regulation is consistent with its previous interpretation and the DOL has provided additional justification for its interpretation (which, hopefully has a much stronger change of surviving a legal challenge in the future), the revision is not consistent with the New York federal court’s decision. Therefore, before denying leave based on the DOL’s interpretation of the work-availability requirement, employers should consult with counsel to discuss strategy and approach.

2.  The “health care provider” exemption: The DOL allowed an employer to exclude from FFCRA leave any “health care providers,” and defined this term broadly.

• What the Court said: The Court determined the DOL’s definition of “health care provider” was “vastly overbroad” by including any employee of certain types of employers, and vacated the definition.
• How the DOL responded: The DOL drafted a revised definition of “health care provider” to include only employees who: (1) meet the definition of that term under the existing FMLA regulations; or (2) 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 and, if not provided, would adversely impact patient care,” and clarified the various types of services that would qualify as follows:

Diagnostic services: Include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.

Preventative services: Include screenings, check-ups, and counseling to prevent illness, disease, or other health problems.

Treatment services: Include performing surgery or other invasive or physical interventions, prescribing medical, providing or administering prescribed medications, physical therapy, and providing or assisting in breathing treatments,

Services that are integrated with and necessary to diagnostic, preventative, or treatment services, and if not provided, would adversely impact patient care: Include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

The final rule provided the following examples of the types of employees this definition is intended to include:

1. Nurses, nurse assistants, medical technicians, and any other persons who directly provide diagnostic, preventative, treatment or other services that are integrated services;
2. Employees providing qualifying services under the “supervision, order, or direction of, or providing direct assistance to” a health care provider; and
3. Employees who are “otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment

And, is not intended to include: IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers.

• What this means: Read together, this definition focuses on employees whose duties or capabilities are directly related to the provision of health care services or are so integrated to provision of such services so as to adversely impact patient care if not provided. As such, the DOL’s revised regulation appears to address the New York district court’s admonishment that its previous definition was too broad. However, because the New York district court did not give instructions on what parameters an employer could or should use when determining the appropriate scope of the health care provider exemption, it is not entirely clear whether the DOL’s new definition would survive legal challenge. Therefore, before denying leave based on the DOL’s definition of a “health care provider,” employers should consult with counsel to discuss strategy and approach.

3.  Intermittent leave: In an effort to limit the risk that an employee might spread COVID-19 to other employees, the DOL limited the use of intermittent leave to certain situations, and included a requirement that an employer’s consent is needed before an employee can take intermittent leave.

• What the Court said: The Court agreed that the DOL could limit intermittent leave to certain situations, but did not agree that employer consent was needed before an employee could take intermittent leave, finding that the DOL had not explained its rationale for such consent.
• How the DOL responded: Once again, the DOL stood firm on its original position that intermittent FFCRA leave is available only when the employer consents; this time, however, it offered a more expansive rationale for its position (citing rationale applicable to the FMLA and invoking the FFCRA’s purpose).

Interestingly, the DOL’s explanation of what types of leave are considered “intermittent” may vary from the general understanding. For example, the DOL explained that when an employee’s child participates in hybrid learning (where schools operate on adjusted or alternating schedules), each day of school closure “constitutes a separate reason for FFCRA leave that ends when the school opens the next day,” and as a result, intermittent leave is not necessary in such cases.  In other words, a full single day of leave is not considered intermittent, and an employee would not need his/her employer’s consent to take off Monday, Wednesday and Friday due to their child’s school closure because such days are separate school closures, each entitling the employee to FFCRA leave.

• What this means: Although the DOL’s revised regulation is consistent with its previous interpretation and in standing by its approach has provided additional justification for its interpretation, the revision is not consistent with the New York federal court’s decision. Therefore, before employers deny an employee’s request for intermittent leave based on the DOL’s interpretation, employers should consult with counsel to discuss strategy and approach.

4. Documentation: the DOL required that employees submit documentation, which supported the need for leave, to the employer prior to taking FFCRA leave.

• What the Court said: The Court did not agree that documentation substantiating the need for leave was required prior to employee taking leave.
• How the DOL responded: The DOL updated the existing regulation to clarify that any documentation required to substantiate an employee’s need for leave need not be provided before leave begins; rather, may be given “as soon as practicable, which in most cases will be when the employee provides notice” of the need for FFCRA leave. Further, in situations where an employee is taking Expanded FMLA, the employee must provide the employer with notice of leave as soon as practicable under the circumstances (like “regular” FMLA).
• What this means: Here, the DOL and the New York federal court agree; under EPSLA, employees cannot be required to provide documentation substantiating the need for leave prior to actually taking the leave. Under Expanded FMLA, an employee is required to provide notice to his/her employee about the employee’s need for leave “as soon as practicable” and where the need is foreseeable, this may be prior to the employee actually taking leave.

At the time of the New York federal court’s decision, there were a number of unknowns related to the impact of the decision, including whether the decision applied to employers outside of New York, how or whether the DOL would respond, and whether employers needed to provide leave consistent with the vacated rules retroactively. We now know that the DOL has chosen to respond by issuing this revised Temporary Rule, which will be effective on September 16, 2020, and that it has taken the position that the provisions vacated by the New York district court are applicable nationwide. Still unknown is whether the New York federal court’s decision – or the DOL’s new interpretations- apply retroactively.

To the extent employers have questions about whether they should take any actions to mitigate risk from having followed the prior regulations on any of these issues, or are making FFCRA paid leave decisions that implicate any of the four aspects of the revised rule, employers should contact their Miller Johnson attorney to discuss the approach that makes sense.