DOL Revises FFCRA after Southern District Invalidates Four Sections

After the United States District Court for the Southern District of New York invalidated four parts of the Families First Coronavirus Response Act (“FFCRA”), the Department of Labor issued clarifications on September 11, 2020. These changes went into effect on September 16, 2020. The revisions have been widely anticipated and it is hoped that they will reduce some of the issues surrounding paid leave and qualification for protection under the FFCRA. Below we highlight the four passages in the court’s ruling and outline the key changes the DOL has made in response to the rulings.

 The four passages of the FFCRA that the the Southern District found invalid were:

1. § 826.20 where paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; 
2. the requirement under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval; 
3. the definition of an employee who is a “health care provider,” set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and 
4. the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.”

 Subsequently, the DOL offered clarifications on these sections, reaffirmed some parts and revised particular instances.

1)    Reaffirming the Work Availability Requirement under § 826.20

Changes were not made to the work availability requirement under § 826.20, but the DOL provided guidance and comments.  The DOL reaffirmed that an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform, even if the qualifying reason for leave did not apply.  The temporary rule clarifies that “leave” is understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.  Additionally, there must be a legitimate, non-retaliatory reason why an employer does not have work for an employee to perform.  The temporary rule also clarifies that this requirement applies to all qualifying reasons to take paid sick leave.  

2)    Reaffirming the Employer-Approval Requirement for Intermittent Leave under § 826.50

Changes were not made to the employer-approval requirement for intermittent leave under § 826.50, but the DOL provided further explanation.  The Department reaffirms 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 DOL believes that employer approval is appropriate for qualifying reasons that do not worsen the risk of COVID-19 infection.

3)    Revisions to the “Health Care Provider” Definition under § 826.30(c)(1)

According to Law360.com, FFCRA’s previous definition of “health care provider” was very broad, as it largely included “anyone employed at hospitals, medical schools and other places where medical services are provided.”  Under this definition, any employee of a contractor at one those facilities and anyone employed by a business that produces medical equipment was also excluded from using the leave. 

Under the revised definition, a worker is a health care provider if the individual is “capable of providing health care services,” and must be “employed to diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” or otherwise meets the FMLA's definition of the term.  The DOL provided an illustrative, not exhaustive, list of employees who are not health care providers: IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. This means that employees who do not provide health care services, and have employers that are covered by FFCRA, are now eligible to take FFCRA leave.

4)    Revisions to the Notice and Documentation Requirements under §§ 826.90 and 826.100

Section 826.90 governs the timing and delivery of notice in which an employee who takes leave must give to an employer.  Section 826.100 states the documents an employer will need to determine whether the requested leave is covered by FFCRA. 

The DOL revised § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.  Revised § 826.90(b) states that advanced notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave.

The DOL revised § 826.100 to clarify that the information the employee must give the employer to support the need for his or her leave need not be given “prior to” taking leave, but rather may be given as soon as practicable.

We have been closely monitoring FFCRA complaints and we are sure to see an effect on suits given the new definitions and clarifications.