DOL Doubles Down on its COVID-19 Leave Guidance for the Most Part, the “Old” Normal is Again the “New” Normal

The U.S. Department of Labor (DOL) has addressed in regulatory fashion the uncertainty over who is entitled to leave under the Families First Coronavirus Response Act (FFCRA).  A New York federal judge created the uncertainty on August 2, 2020 by striking down several critical aspects of the DOL’s Final Rule implementing the FFCRA.  The new “temporary” rule takes effect September 16, 2020 and largely restates the original guidance given.

The FFCRA, which applies to most employers with under 500 employees, granted workers two weeks – up to 80 hours – of emergency paid sick leave at full pay if they are sick or have to quarantine, and the same allotment at partial pay if the workers have to care for sick family members or homebound children.  The law also granted additional partial paid expanded family and medical leave – up to 10 weeks – to employees who are unable to work (or telework) because their child’s school or day care provider has closed.  The FFCRA took effect April 1, 2020, and the DOL subsequently issued several rounds of interpretive guidance (including an expanding list of Q&As), which employers have relied on to date. 

However, the State of New York sued the DOL and claimed that the agency had exceeded its authority in taking four positions when it issued its “Final Rule” implementing the FFCRA’s provisions.  The four components of the Final Rule challenged by the New York lawsuit follow:

1. The “work-availability’ requirement; that is, covered employers could deny workers leave when the businesses do not have work for them.  The effect of the rule was to relieve employers that closed and/or furloughed employees from providing impacted employees with paid leave. 
2. The broad definition of “health care provider” which included anyone employed at hospitals, medical schools and a range of other places "where medical services are provided." The DOL conceded the original HCP definition could potentially exclude an English professor, a librarian, or a cafeteria manager at a university with a medical school from the leave benefits of the FFCRA.
3. The provisions that required employer consent before an employee could take intermittent leave to discharge childcare responsibilities.
4. The notice requirements imposed on employees seeking to take FFCRA leave. 
    

Concluding that the DOL had acted beyond its authority, the Court invalidated each of these four provisions. 

The Order left employers and employees alike in a lurch and uncertain about their respective obligations under the FFCRA, just as the pandemic enters a new phase where the economy generally is re-opening and traditional schools are welcoming students back to virtual and actual classrooms.  The DOL jumped into this void (rather than pursue an appeal, especially as the FFCRA will sunset at year’s end).  As described below, the DOL effectively reiterated its previous guidance, albeit with a fuller explanation for its decision making. 

The Work-Availability Requirement – No Changes

The DOL reaffirmed its determination that FFCRA’s leave entitlements are not available where employers do not have work for their employees to perform.  Thus, the FFCRA benefit exists only if the employer has work available to its workforce; an employer is not penalized twice when it is unable to generate revenue.  The DOL elaborated on its reasoning for the work-availability requirement to meet the Court’s stated concerns.  The temporary rule further clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.   

Revised, Narrow Definition of Health Care Provider – Significant Changes

In a concession to the Court order, the DOL revised and narrowed the expansive definition of “health care providers” by cropping it at the edges to create limits.  The term now tracks the “pre-COVID” definition of health care provider under the FMLA, pursuant to 29 CFR 825.102 and 29 CFR 825.125, and includes “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.”  The revised definition includes, for example, nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under their state’s law.  To illustrate the limits of the revised definition, the DOL identified information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers as workers who are not “health care providers.”  Thus, the statutory exemption available to employers in the medical field is narrowed to those workers with a more direct connection to patient care.  Because there is no clear demarcation of where to draw that line, prudent employers might exercise caution and avoid stretching the optional exclusion of employees from FFCRA leave to ensure operational capacity.  So, while the revised definition of health care provider is much more limited in describing the employees it reaches, employers can at least draw upon the original FMLA definitions found at 29 CFR 825.102 and 29 CFR 825.125.

Intermittent Leave – No Changes -- Employer Permission Still Required

The DOL reaffirmed that, where intermittent FFCRA leave is permitted, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently (and the specific increments of time of the approved leave).  Absent clear agreement, no leave under the FFCRA may be taken intermittently.  Other than a fuller explanation for taking this stance, the DOL’s original guidance remains unchanged.

The DOL also took the opportunity to turn its recent Q&A guidance on school-related leaves into enforceable law.  The new rule states that the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be “intermittent.”  In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the DOL explains that school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.  The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time, and no other suitable person is available to do so. Thus, for the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.  The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).  

In DOL’s view, intermittent leave is not needed because the school literally closes and opens repeatedly. The DOL finds the same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week, and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.  This situation is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule.  Under the latter circumstances, the employee’s FFCRA leave is intermittent per DOL and would require his or her employer’s agreement.

Documentation Requirements – Minimal Changes

As a precondition to securing FFCRA leave, the DOL’s Final Rule had made employees submit “documentation indicating, [among other things], 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.”  In response to the Order, the DOL revised Section 826.100 to clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable but not “prior to” taking the leave.  Likewise, the DOL revised Section 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.  Advance notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, notice should be given before taking leave. 

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If nothing else, the DOL’s action provides, for the present, welcome clarity in a fluid environment.  While it may return to the courts, the controversy has given employers an opportunity to assess their COVID-related leave practices against the latest guidance issued by the chief regulator.