Following the enactment of the Families First Coronavirus Response Act (FFCRA) in the early days of the pandemic in the United States, companies across the country scrambled to comply with the emergency paid sick and family leave requirements under the new law. On April 1, 2020, the Department of Labor sought to provide guidance and interpretation of the FFCRA through a set of temporary regulations. Employers subsequently relied on the DOL’s regulations to fulfill their obligations under the FFCRA. On August 3, 2020, however, the U.S. District Court for the Southern District of New York found portions of the DOL’s initial FFCRA regulations invalid—thus creating more confusion for businesses trying to comply with the new law. In response to the court’s decision, the DOL has issued a revised set of regulations, effective September 16, 2020, which attempt to address the portions of the initial regulations that were ruled invalid by the court.
The DOL reaffirmed that FFCRA leave may only be taken if there is work otherwise available for the employee – that is, the qualifying reason for leave under the FFCRA has to be the actual reason the employee is unable to work. Therefore, an employee cannot use FFCRA leave if the employer would not have had work for the employee to perform, even if the employee also had a qualifying reason under the FFCRA. For example, an employee of a restaurant that closes temporarily cannot take FFCRA leave even if the employee has a qualifying reason, because the restaurant employer would not have work for the employee to perform.
The DOL also reaffirmed its rule that intermittent leave—leave that is taken in separate blocks of time rather than one continuous period -- is only permissible with employer approval. This is true for employees who work on site and those who telework. Importantly for employees and employers attempting to navigate work and virtual schooling due to the pandemic, the regulations clarify that taking FFCRA leave in full-day increments to care for children whose schools are open on an alternate-day attendance or a hybrid-attendance basis, does not count as intermittent leave because the schools are considered closed as to the effected student on the days that the student is not able to physically attend by direction of the school. As a result, in such situations, no employer consent is required.
In addition, the DOL revised the definition of health care provider to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or 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 which, if not provided, would adversely impact patient care. The FFCRA allows employers to exclude “health care providers” and “emergency responders” from the FFCRA leave requirements. This new definition focuses on the role of the employee, and not just the identity of the employer, in determining who can be excluded from taking leave.
The DOL also revised its notice and documentation requirements. In its original regulations, employees were required to provide documentation of the need for leave prior to taking leave. The new rule requires only that the documentation be produced as soon as practicable, but not necessarily before leave can be taken.
We will continue to monitor developments related to the FFCRA leave and other laws that may impact your business. If you have any questions, contact your experienced employment counsel at Hirschler.