The Department of Labor Amends its FFCRA Regulations

From Doug Larsen at Fishman, Larsen & Callister:

On August 3, 2020 we wrote about the decision of the Southern District of New York invalidating certain provisions of the DOL regulations related to emergency paid sick leave and leave under the expanded family and medical leave act. The DOL recently responded to the court’s order. Here is some background, on what happened and how the DOL responded.

The Families First Coronavirus Response Act (“FFCRA”) created two paid leave provisions related to COVID-19. Under Emergency Paid Sick Leave (“EPSL”), an employee can take up to 10 days (two weeks) of paid time off under certain conditions when unable to work due to COVID-19 factors. Emergency Family and Medical Leave Expansion (“FMLAE”) allows an employee to take up to an additional 10 weeks of paid time off to care for a child due to the closure of the child’s school or place of care.

The DOL enacted regulations to implement the law. However, the federal District Court for the Southern District of New York determined that four of the regulations were invalid:

1. The requirement under 29 C.F.R. § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave;

2. The requirement under 29 C.F.R. § 826.50 that an employee may take FFCRA leave intermittently only with the employer’s approval;

3. Pursuant to 29 C.F.R. § 826.30(c)(1), the definition of an employee who is a “health care provider” who is excluded eligibility for EPSL or FMLAE leave; and

4. Pursuant to 29 C.F.R. § 826.100, the requirement that employees must provide the employer with certain documentation before taking leave.

In response to the court’s opinion, the Wage and Hour Division (“WHD”) of the DOL issued the following amendments to the regulations:

1. The qualifying reason for EPSL and FMLAE leave must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a qualifying reason such as if the worksite had closed. The WHD based this on the law’s “but-for” causation standard.

2. The WHD stood firm on requiring employer approval to take intermittent FMLAE leave. It concluded that avoiding any disruption of business operations is a principle of the FMLA and that the rule requiring employer approval best meets that principle.

3. Health care providers who can be excluded from these leaves are those who fall within the FMLA’s definition of a health care provider under 29 C.F.R. §§ 825.102 and 825.125. This includes physicians and others who make medical diagnoses, as well as employees who are health care providers based on their roles and duties, such as persons “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

4. Documentation required to take either EPSL or FMLAE need not be given to the employer before taking the leave, but may be given “as soon as practicable.”

These amendments to the DOL regulations may affect your business. Please consider them before making decisions regarding eligibility and documentation for any leaves.