Just as we were getting used to COVID-related paid sick and family medical leave under the FFCRA, the DOL announced its revised regulations.
The Families First Coronavirus Response Act (FFCRA) requires all public employers and private employers with fewer than 500 employees to provide employees with emergency paid sick leave (EPSL) and expanded family medical leave (EFMLA). Recently, a federal judge invalidated certain parts of the FFCRA and sent the Department of Labor (DOL) back to the drawing board. The DOL responded with new regulations.
These updated regulations clarify or amend the FFCRA in four important ways.
1. An employee may be entitled to EPSL/EFMLA only if the employer has work for the employee.
This means furloughed employees or employees who ask for leave during their off-shift can’t take FFCRA leave.
2. An employee entitled to FFCRA is not necessarily entitled to “intermittent” leave.
Intermittent leave is for short periods of time, by the hour or day, for example. Employers have the discretion to allow intermittent leave or not and could require the employee to take the leave in one lump sum.
As a reminder, an employee is never permitted to use EPSL leave intermittently while under quarantine order, experiencing symptoms, after possible exposure to COVID-19, or while caring for someone with COVID-19. An employee potentially in contact with the virus could spread it to others if returning to work. The only reason an employee can take EPSL or EFMLA intermittently is when taking leave to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19.
The new regulations from the DOL reiterate that the FFCRA strikes a balance between the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.
3. The DOL narrowed the definition of “health care providers.”
The FFCRA allows employers to exempt “health care providers” from FFCRA leave. Congress created this exemption in an effort to limit any disruptions to the health care system’s capacity to respond to the COVID-19 public health emergency and other critical public health and safety. The DOL’s original interpretation of “health care providers” was so broad that it could even exempt the cafeteria staff at a hospital from FFCRA leave. In the New York case mentioned previously, the judge held the DOL needed a definition that included only those employees whose duties—not position—related to the provision of health care service.
The term “health care providers” under the DOL’s new regulations has been limited. Examples are physicians and others who make medical diagnoses or who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care. Information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers are explicitly not health care providers that an employer can exempt from FFCRA leave.
While the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records— they are not integrated and necessary components of patient care.
4. Employees may be entitled to the leave before they provide their employer with documentation.
Instead of providing documentation before taking leave, employees now just need to provide documentation as soon as practicable. The DOL gives some examples:
- If an employee learns on Monday morning before work that his or her child’s school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as reasonably practicable (likely on Monday at work).
- If the need for expanded family and medical leave was not foreseeable—for instance, if the employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as reasonably practicable.
We are now less than four months from the planned sunset for FFCRA and the biggest FFCRA question remaining may be what will happen after January 1, 2021? Many employees may have burned through their leave, or soon will, now that school has begun. A vaccine before 2021 is unlikely and federal health officials expect us to be deep into 2021 before any sense of normalcy returns. Flu season is coming, too. If or when Congress extends or expands FFCRA into 2021, Woods Rogers’ Labor & Employment team will keep you informed.