Alerts and Updates

Department of Labor's Temporary Rule Revises FFCRA Regulations in Response to Federal Court Decision

September 17, 2020

The DOL stood firm on its interpretation that the FFCRA grants paid leave to employees “only if the qualifying reason is a but-for cause of the employee’s inability to work.”

On September 11, 2020, the United States Department of Labor (DOL) issued revised regulations for the Families First Coronavirus Response Act (FFCRA) after a New York federal district court decision struck down parts of the DOL’s prior final rule interpreting and implementing the FFCRA. The revised regulations became effective on September 16, 2020, and expire along with the FFCRA on December 31, 2020. For a detailed discussion of the FFCRA, see our April 3, 2020 Alert.

The revised regulations address the following four provisions of the DOL’s final rule that were vacated by the district court in a decision analyzed in our August 7, 2020 Alert:

  • The provision stating that employees are ineligible for FFCRA leave if the employer does not have work for them.
  • The provision requiring employer approval before an employee can take intermittent leave under the FFCRA.
  • The broad definition of “health care provider” for purposes of the exclusion from FFCRA eligibility.
  • The provision requiring that employees provide documentation prior to taking FFCRA leave.

As discussed below, the DOL’s response to the district court’s decision was a mixed bag. The DOL reaffirmed its position that employees are ineligible for FFCRA leave if their employer does not have work for them, and reaffirmed that employer approval is required prior to an employee taking intermittent leave under the FFCRA―and also clarified that intermittent leave did not apply to leave taken under the Emergency Family and Medical Leave Expansion Act (EFMLEA) where an employee’s child is attending school on a “hybrid” model. However, the revised regulations narrow significantly the broad definition of “health care provider” in the previously issued final rule and modify the timeline for when an employee must provide documentation for taking FFCRA leave.

Work-Availability Requirement Reaffirmed

The DOL stood firm on its interpretation that the FFCRA grants paid leave to employees “only if the qualifying reason is a but-for cause of the employee’s inability to work.” The DOL explains that “leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” By restating its position, the DOL reaffirms its regulations precluding employees whose employers do not have work for them from using FFCRA leave, including employees who are unemployed because they are furloughed or the “employer closed the worksite (temporarily or permanently).”

The DOL reasoned that it would be “perverse” and “illogical” for a furloughed employee with a qualifying reason to receive paid FFCRA leave while their co-workers who do not have a qualifying reason for FFCRA leave were without pay.

The DOL also clarified that the work-availability requirement applies to “all qualifying reasons for leave” under the FFCRA. However, it also cautioned employers against withholding work from employees for discriminatory and retaliatory reasons or to intentionally avoid providing FFCRA leave.

Employer Consent Still Required for Intermittent Leave; Eligibility for Hybrid School Attendance Leave Clarified

The DOL also reaffirmed its requirement that employees obtain employer approval to take FFCRA leave intermittently. It explained that this requirement is “consistent with longstanding principles governing intermittent leave… [that] is taken in separate blocks of time due to a single qualifying reason.” The DOL’s reasoning was based, in part, on a concern of spreading COVID-19 through intermittent leave where the employee may have an elevated risk of being infected. The DOL advised that employees who are at risk of spreading COVID-19 should telework, if available.

The DOL also addressed the timely return-to-school issue encountered by employers when schools are operating on a hybrid attendance approach (i.e., in-person schooling on some days, virtual/remote learning on others) and parents request EFMLEA leave to care for their children on virtual/remote learning days. The DOL concluded that intermittent leave is not implicated when schools are operating on a hybrid attendance approach. Rather, the DOL views each day of school closure as a “separate reason for FFCRA leave that ends when the school opens the next day.” Accordingly, an employee whose child is attending school on a hybrid approach is not required to obtain employer consent to miss work on days their child is physically not in school, because each day the child is not in school is considered a separate school closure giving rise to a separate need for leave under the FFCRA.

Scope of Healthcare Providers That May Be Excluded from FFCRA Leave Benefits Narrowed to Track Statutory Language

To “ensur[e] that the health care system retains the capacity to respond to COVID-19 and other critical health care needs,” the FFCRA allows employers to elect to exclude healthcare providers from leave benefits. The statute utilizes the definition of “health care provider” set forth in the Family and Medical Leave Act (FMLA): “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery… or [a]ny other person determined by the Secretary [of Labor] to be capable of providing health care services.” FMLA regulations identify the following as persons “capable of providing health care services”:

  • Podiatrists, dentists, clinical psychologists, optometrists and chiropractors;
  • Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;
  • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; and
  • Any healthcare provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

The final rule issued by the DOL in April interpreted the definition of “health care provider” so broadly as to include “anyone employed at” a doctor’s office, hospital, medical school, nursing home or other location “where medical services are provided,” including contractors hired by medical providers. The district court vacated this broad definition as inconsistent with the FMLA definition adopted in the FFCRA.

In the revised regulations, the DOL narrows the definition to focus on the role or duties of the employee rather than the identity of the employer, such that “health care provider” includes an employee who: (i) meets the definition as defined under the FMLA or (ii) is “employed to provide diagnostic services, preventative 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.” As the DOL explains, “It is not enough that an employee works for an entity that provides health care services.”

Because the term “health care services” is not defined by the FMLA or FFCRA, the DOL relied upon the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 to identify healthcare services. The DOL explains that “[h]ealth care services reasonably may include services that are not provided immediately, physically to a patient; the term health care services may reasonably be understood to be broader than the term health care” (emphasis in original). The DOL cites, as an example, a laboratory technician who processes test results and does not have contact with a patient. The revised regulations define “health care provider” to include employees providing healthcare services that may be considered “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” as follows:

  • Diagnostic services: taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventative services: screenings, checkups and counseling to prevent illness, disease or other health problems.
  • Treatment services: performing surgery or other invasive or physical interventions, administering or providing prescribed medication and providing or assisting in breathing treatments.
  • Other services that are integrated with and necessary to provide patient care: bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures and transporting patients and samples.

The revised regulations specifically exclude from the definition of “health care provider” employees who “provide services that affect, but are not integrated into, the provision of patient care… such as information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” As noted by the DOL, this list is not exhaustive.

Employers who elect to exclude healthcare providers from leave benefits must now apply the new definition from the temporary rule.

Employees Must Provide Documentation of Need for Leave as Soon as Practicable and Should Provide Advance Notice If Leave Is Foreseeable

In response to the district court striking down the requirement that employees furnish documentation of need for FFCRA leave “prior to taking” it, the DOL’s revised regulations require employees to provide such documentation “as soon as practicable, which in most cases will be when the employee provides notice” of the need for FFCRA leave. The DOL also notes that employees should provide advance notice of leave under the EFMLEA “where the necessity for [expanded family and medical leave] is foreseeable,” including where the employee has advance notice of a school or place of child care closure. The information that must be included in documentation of the need for leave remains unchanged.

What This Means for Employers

It remains to be seen whether the state of New York or any other interested party will challenge the DOL’s revised regulations―in particular, the reaffirmation of the work-availability requirement and need for employer approval of intermittent leave requests. That said, in light of the revised regulations, employers covered by the FFCRA (generally, employers with fewer than 500 employees) should revisit their eligibility criteria and processes for evaluating FFCRA leave requests to ensure compliance with the DOL’s revised regulations. Given the complicated provisions of the FFCRA and unique factual circumstances that continue to be presented by the COVID-19 pandemic, employers are encouraged to review these changes with employment attorneys.

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