U.S. Department of Labor Issues Revised FFCRA Regulations in Response to Court Decision Invalidating Certain Provisions; EEOC Updates its COVID-19 Guidance

September 30, 2020

Two weeks after the U.S. Department of Labor (DOL) issued its temporary rule interpreting the leave provisions of the Families First Coronavirus Response Act (FFCRA), New York Attorney General Letitia James filed a lawsuit alleging that various provisions violated both the statutory language and purpose of the FFCRA.

On August 3, 2020, Judge Paul Oetken of the Southern District of New York (SDNY) issued a decision largely agreeing with the Attorney General’s challenge and invalidating various provisions of the temporary rule.

In response, on September 11, 2020 the DOL revised its regulations to clarify the paid leave requirements under the FFCRA.

Work Availability Requirement

The FFCRA states that an employer shall provide FFCRA leave to employees to the extent the employee is unable to work (or telework) due to a need for leave because of or due to a qualifying reason for leave. The DOL interpreted this to require that the qualifying reason for leave be a “but-for” cause of the employee’s inability to work, and therefore excluded from coverage employees whose employers did not have work available for them (i.e., employees who were furloughed).

The Court struck down this “work availability requirement” on the basis it was not well reasoned and was not based on a permissible construction of the FFCRA. The Court further noted that the requirement was applied unevenly: only to employees who took leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) or who took leave for only three of the five reasons permitted under the Emergency Paid Sick Leave Act (EPSLA).

In response, the DOL reaffirmed its prior regulations that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave, explaining that if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave, that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.

The DOL also agreed that there was no basis to apply the requirement unevenly, and revised the regulations to explicitly state that the work availability requirement applies to all qualifying reasons to take leave under the EFMLEA and the EPSLA.

Intermittent Leave

The DOL’s temporary rule permitted employees to take FFCRA leave intermittently only if the employee and employer agreed, and only if the employee took leave to care for a child whose school or place of care was closed, or whose child care was unavailable.

The Court agreed that limiting intermittent leave solely to child care purposes was reasonable and consistent with the DOL’s public health and safety justifications; however, the Court struck down the requirement for employer consent to intermittent leave as unreasoned.

The DOL reaffirmed its rule that where intermittent FFCRA leave is permitted by the 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 justified this requirement by highlighting analogous leave under the Family and Medical Leave Act (FMLA), noting that when intermittent leave is not required for medical reasons, the FMLA balances the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring the employer’s consent for the employee to take intermittent leave.

Definition of “Health Care Provider”

Under the FFCRA, employers may exclude “health care providers” from the leave entitlements. The FFCRA draws its definition of “health care providers” from the FMLA. Relying on section (b) of the FMLA’s definition, the DOL’s temporary rule adopted an expansive definition which included individuals employed at doctor’s offices, hospitals, health care centers, and other enumerated health care facilities, as well as “any individual employed by an entity that contracts with any of these institutions to provide services or maintain the operation of the facility where the individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”

The Court struck down the DOL’s definition as overbroad, holding that the Secretary of Labor and the DOL should have focused on the individuals’ roles and duties, rather than on the nature of their employers.

In response, the DOL revised the definition of “health care provider” to mean employees who are health care providers under the FMLA “and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

Required Notice and Documentation to Support FFCRA Leave

Finally, the DOL’s temporary rule had required employees to submit certain documentation prior to taking FFCRA leave.

The Court agreed that employers could require employees to provide documentation indicating “their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave,” but held that requiring such documentation prior to leave was onerous and unlawful.

The DOL revised its regulations to clarify that the required information to support the need for leave should be provided “as soon as practicable,” rather than “prior to” taking FFCRA leave. As in its original regulations, the revised rule states that employers may not require advance notice for leave under the EPSLA, and may only require notice “after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave.” On the other hand, advance notice for leave under the EFMLEA is required as soon as practicable. If the need for leave is foreseeable, that will generally mean providing notice before taking leave. If the need for expanded family and medical leave was not foreseeable, the employee may begin to take leave without giving prior notice, but must still give notice as soon as practicable.

Other Updated COVID-19 Guidance

On September 8, 2020, the Equal Employment Opportunity Commission also released updated guidance addressing COVID-19 and the federal anti-discrimination laws enforced by the agency. The updated guidance includes new questions and answers, mainly adapting information from its March 27th Outreach Webinar and its revised Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. The updates primarily address the following topics: (1) disability-related inquiries and medical examinations, (2) confidentiality of medical information, and (3) reasonable accommodations.

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Given how often and quickly the legal landscape has evolved during the COVID-19 pandemic, it is important for employers to monitor agency guidance closely to ensure compliance.

If you have any questions regarding the DOL or EEOC’s guidance regarding COVID-19, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.

Seward & Kissel has also established a COVID-19 Resource Center on our web site to access all relevant alerts that we distribute.