Update: U.S. Department of Labor Issues Revised Regulations Regarding the Families First Coronavirus Response Act

On Friday, September 11, 2020, the United States Department of Labor (the “Department”) issued revised regulations intended to clarify paid leave requirements under the Families First Coronavirus Response Act (“FFCRA”).  The original FFCRA regulations were issued by the Department on April 1, 2020, but on April 14, 2020, the State of New York filed suit in the United States District Court for the Southern District of New York (“Southern District”) challenging certain aspects of the regulations.

On August 3, 2020, the Southern District ruled that four parts of the Department FFCRA’s regulations are invalid.  In response, on September 11, 2020, the Department issued revisions with respect to two parts of the FFCRA regulations cited by the Southern District, but reaffirmed (with some clarifications) the other two parts of the regulations:

  1. First, the Department reaffirmed that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave, and clarified that this requirement applies to all six qualifying reasons for leave under the FFCRA. In other words, the Department’s rule states that an employee only qualifies for leave under the FFCRA if, but for the qualifying reason (i.e., the employee is required to quarantine at home due to exposure to the coronavirus), the employee would be able to work. If there is no work for an employee to do because, for example, the employer temporarily closed its worksite or furloughed its employees, then the employee is not entitled to FFCRA leave regardless of any qualifying reason to take paid leave.
  2. Second, the Department reaffirmed that, where intermittent FFCRA leave is permitted by the Department’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently. The Department explained that intermittent leave—which is defined as leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period of leave taken for a single qualifying reason—should only be permitted with employer-consent in order to maintain consistency with interpretation of the Family and Medical Leave Act and to combat the spread of the coronavirus.  For example, employees who take intermittent paid leave to care for an individual in their household suffering from COVID-19 may unnecessarily increase the risk of spread of the coronavirus if the employees are given unrestricted permission (that is, without employer approval) to go to work on days of their choosing.
  3. Third, the Department revised the definition of “health care provider” under the portion of the FFCRA which permits employers to exclude employees who are “health care providers” or “emergency responders” from the FFCRA’s entitlement to paid leave. Previously, this exception generally applied to any employee of a health care facility, meaning that an employee of a health care facility who had no interaction or role whatsoever in patient care would still qualify as a “health care provider” solely because the employer was a health care facility, and thus would not be entitled to FFCRA paid leave.  The Department clarified this exception, stating that a “health care provider” is defined as a physician or other person who may make a medical diagnosis, or a person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.  This shifted the focus from the employer’s status to the employee’s status.
  4. Fourth, the Department revised its guidance regarding when an employee must provide notice of, and documentary support for, the need for paid leave. Previously, if requested by an employer, an employee was required to provide documentation supporting the need to take paid leave under the FFCRA prior to taking leave.  However, an employee is now only required to provide documentation to support the need for his or her leave as soon as practicable.  Additionally, an employee is also only required to give notice of the employee’s intention to take expanded family and medical leave to his or her employer “as soon as practicable,” and this does not necessarily have to occur prior to the employee taking leave.

The Department’s revised regulations will go into effect on Wednesday, September 16, 2020.  While the entitlement to coronavirus-related paid leave provided by the FFCRA is set to expire on December 31, 2020, it remains to be seen whether Congress will extend the application of the FFCRA into 2021.  For now, employers should carefully evaluate each employee’s request for paid leave to determine whether and under what circumstances an employee is entitled to paid leave under the FFCRA.

Allison Carroll is an attorney with the law firm of Cantey Hanger LLP.  Her practice focuses on employment law, commercial litigation, and independent investigations.  For more information call 817-877-2821 or visit www.staging.poised-team.flywheelsites.com.