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Employment & Labor Law FLASHPOINTS October 2020

Catherine R. Locallo, Robbins Schwartz, Chicago
312-332-7760 | E-mail Catherine R. Locallo

Department of Labor Revisits Certain FFCRA Rules Following Court Decision

The Families First Coronavirus Response Act (FFCRA), Pub.L. No. 116-127, 134 Stat. 178 (2020), is a federal law that applies to private employers with less than 500 employees, as well as state and local government agencies. The FFCRA provides eligible employees with up to two weeks of employer-paid sick leave for a COVID-19 qualifying reason (Employer Paid Sick Leave) and up to twelve weeks of leave (first two weeks are unpaid and then employer-paid leave) to care for a child whose school, place of care, or childcare provider is unavailable due to COVID-19 (Emergency Family and Medical Leave Expansion Act, Pub.L. No. 116-127, Div. C, 134 Stat. 189 (2020)). At present, the FFCRA is effective from April 1, 2020, through December 31, 2020. For more detailed information about the FFCRA and the qualifying reasons for leave, please refer to the April and May 2020 Labor & Employment FLASHPOINTS.

In State of New York v. United States Department of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020), the U.S. District Court for the Southern District of New York struck down four provisions of the U.S. Department of Labor’s (DOL) regulation implementing the above-referenced paid leave provisions of the FFCRA. In summary, the court found that the DOL exceeded its authority by

  1. permitting that leave may be taken only if the employer has work for the employee;

  2. broadly defining “health care provider” to essentially include all employees of employers that provide healthcare services;

  3. permitting employees to use intermittent leave only if their employer agrees; and

  4. requiring employees to provide documentation prior to taking leave.

While the court’s ruling technically only applies to New York and all other provisions remained in effect, the decisions caused the DOL to revisit these provisions. The DOL reaffirmed its regulation in part and revised in part.

First, the DOL reaffirmed that employees may only take leave under the FFCRA if their employer has work for them and the employee cannot perform the work due to a qualifying reason for the leave. For example, if the employer’s business is temporarily closed, the employee is not entitled to FFCRA leave because there is not work for them. To respond to the court’s concerns, the DOL clarified that the work availability requirement applies to all qualifying reasons for leave under the FFCRA. See 29 C.F.R. §826.20.

Second, the DOL reaffirmed that when intermittent FFCRA leave is permitted under its regulation, an employer must approve an employee’s request to take leave intermittently. This issue was primarily raised in connection with leave to care for a child whose school was operating under a hybrid schedule and the child could only physically attend school on certain days and on the other days they attended remotely. While the DOL may have technically reaffirmed the rule on this topic, it made a notable distinction for employers about intermittent leave in this regard. Significantly, the DOL explained that there is no intermittent leave issue for hybrid schedules because each day a child’s school or place of care is unavailable to the child is considered its own independent qualifying reason for leave. For example, if a child can only physically attend school on Mondays, Wednesdays, and Fridays, then the child’s inability to attend on Tuesdays and Thursdays would each constitute a qualifying reason for leave such that the employee does not need to obtain agreement from their employer to take leave only two days per week (presuming they otherwise qualify for the leave and they are full leave days). In contrast, the DOL explained that employer approval to take leave intermittently is required if, for example, the child’s school is fully remote (five days per week) and the employee requests to take leave only on Mondays, Wednesdays, and Fridays. See 29 C.F.R. §826.50. Note that an employee is not eligible for leave under the FFCRA if the employee voluntarily chooses a fully online option at their child’s school, but the school is otherwise open to the child for in-person attendance.

Third, the DOL revised its rule by narrowing the definition of “health care provider” for purposes of those employees an employer may elect to exempt from leave under the FFCRA. “Health care provider” now means employees who are healthcare providers under 29 C.F.R. §§825.102 and 825.125 (medical doctors, dentists, nurse practitioners, social workers, physician assistants, etc.), 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. See 29 C.F.R §826.30(c)(1).

Fourth, the DOL revised its rule to clarify that the documentation an employee must give to their employer to support the need for leave under the FFCRA should be provided “as soon as practicable” instead of prior to taking leave. See 29 C.F.R. §826.100.

The DOL simultaneously updated its “Families First Coronavirus Response Act: Questions and Answers,” which can be accessed here.

The next issues employers may face in connection with the FFCRA is whether the leave provisions will be extended through other legislative efforts and possible concerns over employee misuse.

For more information about employment and labor law, see CONDUCTING THE EMPLOYMENT PRACTICES AUDIT (IICLE®, 2020). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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