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Not Backing Down: DOL “Reaffirms” Most of Its Paid Leave Rules in Response to “Nationwide” New York Court Decision

September 14, 2020

On August 3, 2020, a federal district court in New York struck down portions of the Department of Labor’s (DOL) Regulations interpreting employer and employee paid leave rights under the Families First Coronavirus Response Act (FFCRA). On Friday, September 11, 2020, the DOL issued “revised” regulations in response to that Court decision. 

Up until this point, there was debate as to whether the New York Court’s ruling applied nationally. The DOL confirmed on September 11 that it believes the ruling applies nationwide. At the same time, however, the DOL did not simply roll over and revise its regulations to fall in line with the Court’s opinion. Instead, the majority of the DOL’s revised regulations are to “reaffirm and provide additional explanation” as to why the DOL believes its interpretation of the FFCRA and its corresponding rules are correct, notwithstanding the Court’s ruling to the contrary.  

Unless successfully challenged again, below is the latest from the DOL that employers need to know:

  1. Employees may only take FFCRA leave if work would otherwise be available to them.

If your employee has nothing to do, or if your business is closed, then you are not legally obligated to provide leave under either the Emergency Paid Sick Leave Act (EPSLA) or the Emergency Family and Medical Leave Expansion Act (EFMLA). In such situations, the employee does not qualify for FFCRA leave. 

A word of caution: The DOL warns that employers should not purposefully make work unavailable in an effort to deny FFCRA leave. Altering an employee’s schedule in an adverse manner because that employee requests or takes FFCRA leave could constitute unlawful retaliation. 

As a general rule of thumb, employees are ineligible for FFCRA leave due to lack of available work if business operations have been shut down and/or the employee has been furloughed due to COVID-19. Under such circumstances, the employee’s remedy is to seek state unemployment benefits rather than FFCRA paid leave.

  1. Employers can refuse to allow employees to take FFCRA leave “intermittently.”

“Intermittent” leave is leave taken in separate blocks of time for the same qualifying reason. The DOL has confirmed that employer consent is required for intermittent leave. But employers should be careful when making decisions—namely, is the leave requested in fact “intermittent”? 

For example, the DOL does not consider leave to be “intermittent” when it coincides with days that schools are operating on alternate day or hybrid attendance schedules, e.g., classes are “virtual” on Mondays, Wednesdays, and Fridays, but are “in person” on Tuesdays and Thursdays. In such circumstances, an employee’s request for FFCRA leave on Mondays, Wednesdays, and Fridays is not a request for intermittent leave. Rather, according to the DOL, “each day of school closure constitutes a separate reason for FFCRA leave that ends when school re-opens the next day.” Therefore, the employer’s consent is not required under these circumstances, and the employee’s request should be granted. 

The above example is distinguishable from a scenario where school is either “closed” or virtual for multiple successive days, and the employee does not seek leave for each and every day of the school closure. Under that scenario, the entirety of the time the school is closed is for the same qualifying reason. Thus, if a school decides to go virtual for one month due to COVID-19, but the employee only seeks leave for some (but not all) of the days during that month-long school closure, then such a request would properly be considered a request for “intermittent” leave. Under such circumstances, the employer does not have to provide intermittent leave if it does not want to. Instead, the employer can require the employee to use FFCRA leave in a single block of time, e.g., for every workday of the month-long school closure.

  1. Employers of certain “healthcare providers” do not need to provide FFCRA leave.

The DOL has narrowed its definition of “healthcare provider” for purposes of FFCRA leave. First, the definition of “healthcare provider” includes employees who meet the definition of that term under the Family and Medical Leave Act regulations. 

In addition, individuals that are “capable of providing health care services” are considered a healthcare provider. In other words, the focus is on the employee’s job duties and role within the organization. To that end, to be considered a “health care provider,” the employee must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” 

In other words, just because an employee is employed by a healthcare provider does not automatically mean that he/she is considered a health care provider for purposes of being exempt from the FFCRA. Rather, an assessment of the employee’s role and job duties within the health care provider’s organization will dictate whether the employee is legally entitled to FFCRA leave. 

  1. Supporting Documentation is Not Required Prior to Taking FFCRA Leave.

inally, the DOL clarified that employees are not required to provide supporting documentation before FFCRA is granted by the employer.   ather, the employee need only furnish the following information “as soon as practicable”: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work.

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We will continue to monitor any future challenges or changes to the DOL’s rules regarding employer responsibilities under the FFCRA. Of course, it is always advisable to consult with experienced employment counsel when navigating your particular situation.