DOL Revises FFCRA Regulations In Response To Court Order Invalidating Portions Of The Rule

In a prior article, McMahon Berger discussed a U.S. District Court’s decision striking down significant portions of the Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA). Specifically, the court held the following four areas were unlawful: (1) the “work availability” requirement; (2) the intermittent leave provisions; (3) the definition of “health care provider”; and (4) employee documentation obligations. In response, effective September 16, 2020, the DOL has addressed the issues raised by the court’s order and issued revised regulations.

With respect to the work availability requirement, the FFCRA provides that employees are eligible for paid leave if they are “unable to work (or telework) due to a need for leave because” of any of the reasons provided for in the FFCRA. The DOL’s Final Rule provided that paid sick leave and expanded family and medical leave were available only if an employee had work from which to take leave. The Final Rule interpreted the FFCRA to exclude employers who “do [] not have work” for employees.  In other words, if the employer had no work for the employee, the employee was not eligible for FFCRA leave. In its revised rule, the DOL has reaffirmed its position that paid leave under the FFCRA may be taken only if the employee has work from which to take leave. Further, the DOL has confirmed that the work availability requirement applies to all of the qualifying reasons for taking paid leave under the FMLA.

Second, the DOL’s revised rule addresses the court’s concern with its interpretation of the intermittent leave option under the FFCRA. While the FFCRA did not address intermittent leave, the Final Rule provided that intermittent leave was available only for the qualifying reason of taking leave to care for a child whose school or childcare provider is closed due to COVID-19. The DOL justified limiting the availability of intermittent leave in such a manner to help prevent the spread of the disease by keeping employees who were showing symptoms or had been exposed away from the workplace for a continuous period of time. The court’s order found the additional requirement, however, that the employer and employee must agree to the use of intermittent leave to be unlawful. In its revised rule, the DOL has reaffirmed that an employee must obtain the employer’s approval to take paid sick leave or expanded family and medical leave intermittently, and explicitly expanded its position that employer approval must be obtained for all categories of leave provided by the FFCRA.

As for the definition of health care provider, the FFCRA excludes individuals who are health care providers from eligibility for paid leave. The DOL’s Final rule significantly expanded the exclusion by including a broad range of individuals who provided health care services. The Court’s order concluded the DOL’s expansion of the term health care provider was unlawful as it excluded numerous individuals who were not actually providing health care services from the paid leave provisions of the FFCRA. In response, the DOL’s revised rule significantly narrowed the definition of health care provider to: (1) employees who fall within the definition of health care provider as set forth in the Family and Medical Leave Act (FMLA), such as physicians and others who make medical diagnoses; and (2) employees who are capable of providing health care services, such as diagnostic, preventive, treatment or other services that are integrated with and necessary to the provision of patient care. The revised rule provides several examples of employees who would be included (such as a laboratory technician who processes test results) and would not be included (IT professionals, building maintenance staff, human resources personnel, food service workers, billers).

Finally, concerning the court’s issue with the DOL’s documentation of the need for leave requirements, the DOL’s initial rule stated documentation justifying the need for leave needed to be given prior to taking leave. The revised rule provides that the documentation substantiating the need for leave should be turned over to the employer as soon as practicable. The DOL notes in the revised rule that, in most cases, the time for submitting the documentation will be when the employee provides notice of the need for leave. In the case of expanded family and medical leave, which most often is foreseeable by the employee, the time for submitting the documentation will be in advance of the date the leave commences.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutStephen B. Maule
Stephen’s practice includes all aspects of labor and employment law. He assists employers with immigration petitions to the U.S. Citizenship and Immigration Service, including H-1B, TN and permanent residency. He has also represented employers in investigations conducted by the U.S. Immigration and Customs Enforcement.