Department of Labor Issues Revised FFCRA Regulations in Response to New York Federal Court’s Ruling

On August 3, 2020, the United States District Court for the Southern District of New York, in the case of New York v. U.S. Department of Labor, issued a ruling invalidating certain portions of the Department of Labor’s Families First Coronavirus Response Act (FFCRA) regulations.  In particular, the Court found that the agency had overstepped its bounds by:

(1)       Allowing hospitals, doctors’ offices, and other healthcare-providing employers to exempt all of their employees from being eligible for paid leave entitlements under the FCCRA, regardless of the nature of the work performed by the employee;

(2)       Requiring an employee to obtain his or her employer’s approval to take paid leave under the FFRCA on an intermittent basis;

(3)       Stating that employees were not entitled to paid leave if their employer would not have been able to provide them work in the absence of the need for leave (such as by having been laid off, furloughed, closed, etc.); and,

(4)       Requiring employees to provide documentation of the need for paid leave before actually taking such leave.

On Friday, September 11, 2020, the DOL responded to the Court’s actions by issuing revised regulations under FFRCA, in which they amended their previous regulations in part, and provided additional justification for certain other actions with which the Court had disagreed (and thereby kept the prior regulations in place).  First, the agency’s most significant amendment of the regulations came in the context of those employees of healthcare-providing employers who could be exempted from entitlement to paid leave under the Act.  The revised regulations now provide that employees of such entities may be exempted from entitlement to paid leave if the employee “is a healthcare provider under 29 C.F.R. 825.102 and 825.125” (essentially physicians, chiropractors or other direct healthcare providers entitled to certify an employee’s entitlement to FMLA leave), and “any other employee who is capable of providing healthcare services, meaning he or she 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 and, if not provided, would adversely impact patient care.”  29 C.F.R. § 826.30.  In limiting the exemption in this way, the DOL acknowledged the New York  Court’s concern that the determination of which employees could be exempted from FFCRA entitlements should not hinge on the employer’s status as a healthcare provider, but rather the nature of the employee’s particular job duties.  To further illustrate this point, the new regulations state that “employees who do not provide healthcare services as described above are not healthcare providers even if their services could affect the provision of healthcare services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers,” even if such personnel are employed by a hospital, doctor’s office or other employing healthcare provider.

Second, the DOL elected to stand by its position that employees are not entitled to take FFCRA leave on an intermittent basis absent employer consent.  The DOL recognized, as did the Court, that the FFCRA itself had been silent on the issue of intermittent leave.  The agency, however, provided additional justification for its view that intermittent leave under the new Act could not be taken without the agreement of the employer:  first, as for the extended family leave portions of the FFCRA, such leave is only available in cases where the employee is “taking leave to care for his or her child whose school, place of care or childcare provider is closed or unavailable due to COVID-19.”  Under the FMLA, intermittent leave is only available without employer consent where such leave is required by a medical need.  In addition, while a number of the qualifying reasons for taking emergency paid sick leave under the FFRCA do involve medical situations, the DOL reasoned that “the other reasons for taking [paid sick leave] correlate to a higher risk of spreading the virus and therefore, permitting intermittent leave would hinder rather than further the FFCRA’s purposes.”

Third, the Department reaffirmed its earlier position that paid leave under FFCRA “may be taken only if the employee has work from which to take leave . . . .”  The DOL went into additional details supporting that position, but basically returned to the starting point on which it had based its original regulation:  “the qualifying reason for leave [COVID-related conditions, childcare unavailability, etc.] must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason.  This means an employee cannot take FFCRA leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply.”

Finally, the DOL did bend to the Court’s opinion on the subject of the provision of documentation supporting the need for FFCRA leave.  Again, the original regulations had listed certain documentation than an employee was required to provide the employer about the need for FFCRA leave, but stated that such documentation “must be provided prior to taking paid sick leave or expanded family and medical leave.”  In revising that regulation, however, the DOL stated “in keeping with the District Court’s conclusion, the Department amends § 826.100 to clarify that the documentation required [thereunder] need not be given ‘prior to’ taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice of the need for leave.”

The foregoing regulatory changes will become effective upon their date of publication in the Federal Register, currently scheduled for September 16, 2020, through December 31, 2020.  A link to the full text of the regulations may be accessed at:

https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act.

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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.