By Joseph S. Brown, Esq.
Did your company adopt a COVID-19 leave policy after passage of the Families First Coronavirus Response Act (FFCRA)? If so, now is a good time to revisit those policies after the U.S. Department of Labor (USDOL) revised its FFCRA regulations last month in response to a recent court decision. USDOL’s press release, which includes a link to the revamped regulations, can be found here.
The revised regulations – which took effect on September 16, 2020 – clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions. The U.S. District Court for the Southern District of New York in an Aug. 3, 2020 decision (the “Court Decision”) found portions of the US DOL’s regulations invalid, necessitating the review of your policies for compliance.
As summarized in USDOL’s press release, the revisions do the following:
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
Correct an inconsistency regarding when employees may be required to provide prior notice of a need to take expanded family and medical leave to their employers.
Under the FFCRA regulations, intermittent leave was only available to an employee seeking leave due to a need to care for a child whose school or place of childcare is closed, or whose child care provider is unavailable, due to COVID-19. The regulations further provided that in all instances of intermittent leave, employer consent was required. The Court Decision struck down this part of the regulations.
In response to the Court Decision, USDOL stuck to its original position and provided a more detailed rationale for its decision. But a key development is that “intermittent” may be defined differently when it comes to school closures than employers previously thought. In light of COVID-19, many students are attending school in a “hybrid” model in which schools operate on adjusted or alternating schedules. USDOL clarified that each school closure under a hybrid model “constitutes a separate reason for . . . leave that ends when the school opens the next day.” As a result, intermittent leave is not necessary on these occasions because the “school literally closes ... and opens repeatedly.” In other words, a full single day of leave is not considered intermittent and employer consent is not required in that situation.
Employers therefore may need to revise FFCRA consent forms to include separate approvals for permission for an employee to telework and for the use of intermittent leave.
Healthcare Provider Exemption
When USDOL initially unveiled its regulations, many were surprised by the expansive definition of “health care provider”, which essentially provided that any business that touches the health care industry can exempt any of its employees from coverage under the FFCRA. The Court Decision struck down that broad definition.
The revised regulations adopt a narrower definition of “health care provider” that includes:
- Any employee who is a health care provider under the existing FMLA regulations (this includes doctors of medicine and osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, certain Christian Science practitioners, and other providers from whom the employer or its group health plan’s benefits manager will accept certification of a serious health condition for purposes of substantiating a claim for benefits);
- Any other employee who is capable of providing diagnostic, preventative, or treatment services; and
- Any other employee who is capable of providing other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.
The revised regulations specifically exclude those who do not actually provide such health care services, even if their services could affect the provision of health care services, “such as [information technology] professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.”
In light of this sweeping change to the definition of health care provider, employers who previously implemented this exemption should reevaluate whether individual groups of employees they previously believed fit within it still are exempted.
USDOL’s initial rule required employees to provide documentation supporting the need for leave “prior to” taking leave. The Court Decision upheld the documentation requirement, but it invalidated the requirement that such documentation be provided in advance. USDOL responded by clarifying that documentation may be given “as soon as practicable, which in most cases will be when the employee provides notice” of the need for FFCRA leave.
To be consistent with the revised regulations, employers should revise leave-request forms and policies to state that a request for leave and required documentation should be provided to the employer as soon as practicable, not prior to leave.
The revised regulations answer many questions that employers had following the Court Decision. USDOL has taken the position that Court Decision applies nationwide and not just to the parties in the case. So, the revised regulations replaced those vacated provisions. USDOL may appeal the Court Decision or there may be renewed challenges to the revised regulations. Either scenario could lead to USDOL publishing new guidance.
In the meantime, employers should revise their COVID-19 leave policies and forms to conform the revised regulations. And employers who previously denied leave to employees based on the initial version of the regulations should consider – in consultation with employment counsel – strategies to mitigate against the risk of potential claims.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
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