DOL Revises and Clarifies FFCRA Leave Rules
In response to a U.S. District Court decision striking down key aspects of its temporary rule governing leave under the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor has adopted a revised rule “clarifying” certain aspects of its rule under the FFCRA.
- The revised rule, scheduled to take effect September 16, 2020, addresses 4 key areas: (1) the requirement that FFCRA leave is available only if an employee has work from which to take leave; (2) the provision allowing employees to take intermittent FFCRA leave only with employer approval; (3) the definition of “health care provider” employees who can be excluded from eligibility for FFCRA leave; and (4) employers’ ability to require employees to provide documentation before taking FFCRA leave.
Work Availability Requirement
The DOL’s original temporary rule provided that an employee is entitled to FFCRA leave only if the employee would otherwise be scheduled to work but for the FFCRA leave request. Under the rule, an employee would not be entitled to FFCRA leave for any period when they would not be scheduled to work due to a layoff, furlough, reduction in hours, or any other reason, even if related directly to COVID-19. The district court struck down that provision of the temporary rule, finding that the DOL failed to adequately justify its position. The revised rule reaffirms the DOL’s original position, providing additional argument and support for its determination that an employee may only take FFCRA leave if work would otherwise be available to them.
Prior to the district court’s decision, the DOL maintained in its Q&A guidance and its temporary rule that employees could use FFCRA leave intermittently only under certain limited conditions, and only with the agreement of their employer. The district court struck down the provision of the rule requiring employer approval, finding that it was inconsistent with the manner in which intermittent leave is addressed under the regular FMLA.
Rather than revising the language of the original temporary rule, the revised rule includes a provision “reaffirming and explaining the employer-approval requirement for intermittent leave” under the FFCRA. In that section, the DOL distinguishes intermittent leave under the FFCRA from intermittent leave under the regular FMLA, which is generally allowed only when medically necessary, by employer agreement for the birth or adoption of a healthy child, or due to a “qualifying exigency” related to military service. After analyzing and comparing the provisions of the FFCRA and FMLA, the DOL reiterates its original position that when an employee takes FFCRA paid sick leave for reasons other than caring for a child whose school or child care provider is closed, intermittent leave should be available only when an employee can telework, and then only with the employer’s agreement.
For FFCRA child care leave, the DOL also maintains its position that intermittent leave should not be allowed without employer agreement. However, the DOL then goes on to differentiate a situation in which a school operates on a hybrid schedule, with in-person instruction on some days and remote-only instruction on others, from a situation in which an employee seeks to take leave only for certain portions of a period during which a school is closed. Because the former is dictated by the school’s schedule, the DOL reasons, the leave is not “intermittent,” and the employee is entitled to use FFCRA leave during the days that the school is physically closed without their employer’s agreement. Conversely, an employee whose child’s school is providing only remote instruction, but who wants to use FFCRA leave intermittently due to their own schedule or that of another parent or caregiver, would be entitled to do so only if the employer agrees to the intermittent leave schedule. According to the DOL, the same logic would apply to longer or shorter periods of alternating schedules, such as if a child’s school operates in-person only for half-days or alternating weeks. However, the DOL clarified in recent Q&A guidance that an employee who has the option of sending their child to school in-person but chooses remote-only instruction is not entitled to FFCRA leave.
Scope of Health Care Provider Exclusion
The FFCRA allows covered employers to exclude employees who are “health care providers” from eligibility for leave under the FFCRA. Originally, the DOL adopted an extraordinarily broad definition of “health care provider,” including “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity,” including permanent or temporary institutions, facilities, locations, or sites where medical services are provide that are similar to such institutions,” regardless of the function performed by the employee. For example, all of an urgent care clinic’s employees could be exempted from FFCRA leave even if their roles did not directly impact patient care, like billing clerks and schedulers.
The district court determined that this definition was overly broad because it essentially exempts certain employers from FFCRA coverage entirely, rather than affording a more limited exemption for certain employees. In the revised rule, an employee qualifies as a “health care provider” for purposes of the exception only if the employee:
(1) Is a health care provider permitted to certify an employee’s eligibility for regular FMLA leave (defined at 29 C.F.R. §§ 825.102 and 825.125); or
(2) “[I]s capable of providing health 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;” and
(a) Is a nurse, nurse assistant, medical technician, or other person who directly provides services of the type described in (2) above; or
(b) Provides services described in (2) under the supervision, order, or direction of a person described in (1) or (2)(b) above; or
(c) Is “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.”
The DOL further states that employees who do not directly provide healthcare services are not covered, even if their work may affect the provision of health care services. Thus, the new definition excludes “IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.”
Employers May Require Leave Documentation “As Soon As Practicable”
Finally, the district court decision found that a provision of the temporary rule requiring employees to provide certain documentation before taking FFCRA leave was inconsistent with the statute, which allows employers to require notice of leave only “after the first workday (or portion thereof) for paid sick leave, or “as soon as practicable” for expanded FMLA leave. In response, the revised rule specifies that employees may be required to provide the following “as soon as practicable,” which “in most cases will be when the employee provides notice” of their need for leave. The revised rule does not expand the documentation that employers may require, which remains limited to:
- The employee’s name
- Date(s) for which leave is requested
- Qualifying reason for the leave;
- An oral or written statement that the employee is unable to work because of the qualifying reason;
- For leave due to a government quarantine or isolation order, the name of the government entity issuing the order;
- For leave due to advice of a health care provider to self-quarantine, the name of the health care provider making the recommendation;
- For leave to care for a child whose school or place of care is closed, the name of the son or daughter being cared for, the name of the school or child care provider that is closed or has become unavailable, and a statement that no other suitable person will be caring for the child while the employee is taking leave.
- Other documentation required to support a request for the tax credits available to non-governmental employers to pay for the cost of FFCRA leave.
Insights for Employers
In light of the revised rule, employers should review their FFCRA leave practices and procedures and make any necessary changes. Specifically:
- For now, the DOL is maintaining its position that employers do not have to provide FFCRA leave to employees for periods during which they would not otherwise be scheduled to work.
- While the DOL suggests that it is merely “clarifying” its earlier guidance that intermittent leave is available only by agreement between employee and employer, the revised rule redefines “intermittent” leave to exclude the some of the most common intermittent leave scenarios. Employers should reevaluate their practices relating to intermittent FFCRA leave to ensure that they are not denying “intermittent” FFCRA leave for an employee whose child is on a hybrid in-person / remote schedule.
- Given the potential for further court challenges, employers should also exercise caution before denying intermittent FFCRA leave in other situations. For example, an employee whose child’s school is fully remote, but who is able to arrange alternate child care for certain days, arguably would have a need for FFCRA days on the days when alternate care is not available, but not on days when they do have alternate child care. Given the DOL’s reasoning, it is not immediately clear that an employee would have to obtain employer consent to use intermittent leave in this situation.
- Employers who previously classified employees as “health care providers” exempt from leave under the FFCRA should immediately reevaluate those classifications, and should consult with counsel to address any FFCRA leave requests that may previously have been denied under the health care provider exception.
- Employers should review their policies and practices concerning FFCRA leave notice and documentation to ensure that they are consistent with the new provision, requiring FFCRA leave “as soon as practicable,” but not necessarily before an employee starts to use FFCRA leave.
The FFCRA remains set to expire after December 31, 2020. Will Congress extend the FFCRA into 2021? We don’t know. But at least until then, covered employers should continue to monitor developments and adjust their practices as needed to ensure compliance. For any questions regarding this alert or any other issues under the FFCRA, please contact the authors or any other Franczek attorney.