On August 3, 2020, a New York District Court (“District Court”) held certain portions of the Families First Coronavirus Response Act (“FFCRA” or “Act”) invalid, and concluded that the U.S. Department of Labor (“DOL”) exceeded its authority and failed to explain its positions regarding its Final Rule applicable to the Act.[1] In response to the court’s decision, the DOL revised and clarified its position on the disputed sections. The revised regulations were effective on September 16, 2020, and will remain in place until December 31, 2020, when the Act is scheduled to automatically expire. Below is a review of the basic components of the FFCRA, the New York court’s rulings on the DOL’s original regulations, the revised DOL regulations and how it will affect employers dealing with the FFCRA.[2]  

Basic Review of the Components of the FFCRA

On March 18, 2020, President Trump signed into law the FFCRA. The law created two emergency paid leave requirements in response to the COVID-19 pandemic, both of which will automatically expire on December 31, 2020. The FFCRA is composed of the Emergency Paid Sick Leave Act (“EPSLA”) that provides paid sick leave if an employee is unable to work due to one of six qualifying reasons;[3] and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), which temporarily amends Title I of the Family and Medical Leave Act, 29 U.S.C. 2601, et seq.  The EFMLEA allows employees of covered employers (generally less than 500 employees) to take up to 12 weeks of expanded medical leave if the employee is unable to work due to a need to care for a child whose school, place of care, or child care provider is closed or unavailable due to the COVID-19 pandemic.[4] The cost to private sector employers is offset by tax credits as part of the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136 (“CARES Act”).  On April 6, 2020, the DOL promulgated its Final Rule to implement the Act. See 85 Fed. Reg. 19,326 (Apr. 6, 2020). The New York District Court invalidated certain provisions of that Final Rule prompting the revisions recently announced by the DOL.

Court’s Rulings and DOL’s Revised Regulations
  • No Leave When No Work Available – The District Court concluded that due to ambiguous language and the fact that the DOL failed to adequately explain its reasoning, the DOL exceeded its authority when it excluded sick leave for employees when their employers have no work for them. The New York court concluded that the original wording “because” and “due to” an employee’s inability to work was ambiguous so that work availability may not be determinative.  

DOL Response – However, the DOL reaffirmed the “work availability requirement” in that paid sick leave and expanded medical leave are permitted only when work is available from which leave can be taken. The exclusion for work unavailability, such as for office and plant closures due to the pandemic, results in a lack of work being available to employee so that FFCRA leave is not available. The DOL explained that the qualifying reason for leave must be a “but-for” cause of the employee’s inability to work.  If no work is available anyway, the employee cannot say that his loss of work is “but for” a COVID-19 related reason. The DOL affirmed the exclusion for events that create a lack of work for employees, such as an office or plant closure due to the pandemic. 

    • Practice Tip – When faced with the need to close an office, business location or plant, the employer should document its file as to the reasons for the closure, and send a written notice to affected employees explaining the business reasons for the closure.  This will support any denial of a subsequent leave request from an employee at that location.
  • Employer Consent to Intermittent Leave – The District Court concluded that the DOL exceeded its authority insofar as the agency required employer consent for intermittent leave. The court noted that in contrast to the FMLA, Congress said nothing about intermittent leave in the FFCRA. At the same time, however, the court recognized the DOL’s broad regulatory authority to fill gaps in legislation.[5] The court affirmed the portion of the DOL’s Final Rule that banned intermittent leave in situations where an employee’s periodic return to the office could increase the risk of COVID-19 transmission.

DOL Response: The DOL reaffirmed with additional explanation its position that an employee must have employer approval to take FFCRA leave intermittently. An employee may take leave on an intermittent basis “only when taking leave to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19,” and only with the employer’s consent. See 29 C.F.R. § 826.50(b). The DOL explained that “intermittent leave” is inconsistent with any other reason for leave under the FFCRA because it would encourage the spread of the Coronavirus. See 29 C.F.R. § 826.20 (intermittent leave prohibited in those situations). The DOL reasoned that if an employee is out sick or at home with a sick family member for a few days, and then returns to work for a couple of days and repeats that process, there is an increased risk of infecting other individuals in the workplace. Thus, this interpretation of the regulation is consistency with public health concerns.

    • Practice Tip – Consider having a Coronavirus Handbook to explain policies and procedures that apply during the pandemic. Create forms for intermittent leave requests that are related to child care COVID-19 reasons for leave. The forms should be completed prior to the time that leave is taken, or as soon as practicable thereafter. 
    • Teleworking – In some instances, employees who take intermittent leave may telework if their job duties and circumstances permit it. Employers should carefully consider this option for employees who take intermittent leave for COVID-19 child care-related needs. 
  • Healthcare Provider – Under the Act, health care providers are excluded from eligibility for sick leave pay or expanded medical leave due to their critical role in being first responders and providing necessary healthcare services during the pandemic. The DOL revised the definition of “healthcare provider” amid concerns expressed by the District Court that the term as currently interpreted was too broad and excluded employees such as cooks, janitorial staff and office personnel. The District Court stated that the definition of health care provider to include “anyone employed at any doctor’s office, hospital, health care center, clinic, nursing home,” and similar entities was too broad and captured too many employees not properly excluded from the Act’s guaranteed leave protections.[6]

DOL Response: Under the new regulations, the phrase “healthcare worker” includes only those employees who meet the definition of that term under the Family Medical Leave Act (“FMLA”), and those employed to provide “diagnostic services, preventative services, treatment services or other serves that are integrated with and necessary” to provide patient care, which “if not provided, would adversely impact patient care.” The revision narrows the scope of the definition of “healthcare provider” so that individuals such as janitorial staff and cooks working for a healthcare service provider are not excluded from the protections of the FFCRA.[7]

    • New Rule – The new DOL guideline makes it clear that 29 C.F.R. § 826.30(c)(1)(ii)(C) limits “health care provider” to those capable of providing and employed to provide, diagnostic, preventative or treatment services necessary to provide treatment, without which, the patient would be adversely affected. These individuals include laboratory technicians who process test results and those who administer tests to patients, and those who feed, bath, cloth patients or transport patients.
    • Practice Tip – The definition expands the FMLA definition to include individuals who do not directly provide treatment or care to patients, but who are integral and necessary to the treatment of patients, particularly during a pandemic. Companies who provide healthcare services or healthcare personnel should assess their categories of employees to designate those who are, and those who are not, exempt given the new regulation.
  • Documentation Required for FFCRA Leave – Section 826.100 lists the type of documentation that an employee is required to give to his or her employer regarding the need for FFCRA leave, and states that the documentation must be provided “prior to” taking paid sick or expanded family and medical leave. he District Court concluded that this requirement was inconsistent with the notice requirement of the statute allowing notice to be provided “after the first workday” (or portion thereof) for paid sick leave or “as is practicable” for leave connected with school or daycare closings. New York, 2020 WL 4462260, at *12.[8]

DOL Response: Under the DOL’s revised regulation, employees must provide required documentation to their employers supporting their need for leave under the FFCRA as soon as practicable (although not necessarily prior to taking such leave). Therefore, the DOL amended 29 C.F.R. § 826.100 to remove “prior to” taking leave and now requires that documentation be submitted “as soon as practicable,” which in most cases is when the employee provides notice of the needs for leave under § 826.90.

Notice and Documentation Allowed: Sections 826.90 and 826.100 are specific in the timing and type of notice and documentation that an employer is entitled to request. For example, an employer may request the name of the governmental agency that issued the quarantine or isolation order. For self-quarantine situations, an employee must provide the name of the health care provider who advised the employee or employee’s child / relative to self-quarantine. For leave related to school / day-care closures or unavailability, an employer may request: the name of the child; the name of the school, daycare or child care provider unavailable; and a written statement from the employee that no other suitable person will be caring for the child during the period when sick leave or expanded family and medical leave will be taken. 

    • Practice Tip – Although the Act does not permit an employer to request additional documentation to support a leave request, the employer may always request additional materials sufficient to support its request for tax credits.  An employee, upon request, must provide such documentation to take leave under the Act.[9]

The information contained in this article is not designed to address specific situations.  If you have questions concerning this topic, you should consult with legal counsel for advice on fact specific matters.

Robin Foret is a Managing Member at Seltzer, Chadwick, Soefje & Ladik, PLLC, and is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.  Robin Foret is a frequent speaker and writer on employment law compliance topics.  She also provides training for companies to assist them comply with federal and state employment laws.  She can be reached at rforet@realclearcounsel.com or by telephone at (469) 626-5358.  You may also visit the website for more information about our law firm’s services at www.realclearcounsel.com.

[1]  See New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y., Aug. 3, 2020) (invalidating § 29 C.F.R 826.20 because the Department of Labor exceeded its authority and did not sufficiently explain its positions).

[2]  See Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations.

[3] The qualifying reasons are: (1) being subject to a Federal, state or local quarantine or isolation order related to COVID-19; (2) being advised by a health care provider to self-quarantine due to COVID-19 concerns; (3) experiencing COVID-19 symptoms and seeking a medical diagnosis; (4) caring for another individual who is either subject to a Federal, state or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns; (5) caring for the employee’s son or daughter whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons; and (6) experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services (“HHS”).  See 29 C.F.R § 826.29.  To date, the HHS has not identified any similar condition that would entitle an employee to take leave under this provision.

[4]  Any leave taken under the traditional FMLA is counted toward the 12 weeks permitted under the EFMLEA and leave taken under the EFMLEA is counted toward traditional FMLA.  The first 2 weeks of the 12 weeks are covered by the EPSLA so that it is technically 10 weeks of Expanded Family Medical Leave that are permitted.

[5]  See New York, 2020 WL 4462260, at *11.

[6]  See New York, 2020 WL 4462260, at *9-10 (explaining the large group of employees affected by the provision).

[7]  Under Section 5110(4) of the FMLA, the definition of healthcare provider covers: “(i) licensed doctors of medicine or osteopathy and (ii) any other person determined by the Secretary to be capable of providing healthcare services.” 29 U.S.C. 2611(6). 

[8]  See 29 C.F.R. § 826.90(b) (notice may not be required in advance, and is only required after “the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family Medical Leave.”

[9]  See 29 C.F.R. § 826.100(f) (additional material needed to support request for tax credits under Division G of FFCRA).