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September 17, 2020 Download as PDF

Last month, the Southern District of New York[i] invalidated portions of the U.S. Department of Labor (DOL) final rule (Final Rule) concerning who qualifies for COVID-related emergency paid sick and family leave and the requirements for intermittent leave under the Families First Coronavirus Response Act (FFCRA).  The district court found that the Final Rule’s (1) work-availability requirement was beyond the scope of the FFCRA; (2) definition of “health care provider” was too broad; (3) requirement for employer’s consent to intermittent leave was inconsistent with the FFCRA; and (4) requirement for documentation for leave was inconsistent with the FFCRA’s notice requirements.  In view of the court’s ruling, the DOL issued revised rules effective September 16, 2020, reaffirming or revising the portions of the Final Rule impacted by that ruling and explaining its positions.[ii]

The DOL Reaffirms the Work-Availability Requirement for Leave under the FFCRA

The DOL reaffirms that an employee may take paid sick leave and expanded family and medical leave only when the employee has work to perform, despite meeting all of the other criteria set forth under the Emergency Paid Sick Leave Act (EPSLA) or the Emergency Family and Medical Leave Expansion Act (EFMLEA).  Based on its experience in the administration and enforcement of other mandatory leave requirements, the DOL interprets the FFCRA as permitting employee leave only if the employee “would have worked if not for the qualifying reasons for leave.”  The DOL instructs that “leave” is an “authorized absence from work” and this interpretation is consistent with its timeworn interpretation under the Family and Medical Leave Act (FMLA).  In addition, the DOL clarifies that this requirement applies to all qualifying reasons to take leave and not just to three of the six qualifying reasons under the EPSLA.

The DOL Revises the Definition of Health Care Provider to Focus on the Provision of Health Care Services

Under the FFCRA, an employer may deny COVID-related emergency paid sick and family leave to an employee who is “a health care provider or an emergency responder.”  The FFCRA adopted the FMLA’s definition of “health care provider,” but the district court found that the Final Rule’s definition exceeded the FMLA’s because it did not focus on the services provided by the employee and instead hinged on the identity of the employer.  The DOL recognizes this error and revises the definition to focus on the role and duties of the employee rather than the employer.  The DOL revises the definition of “health care provider” to include 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.”

The DOL Reaffirms That Intermittent Leave Under the FFCRA Requires the Employer’s Consent

The Final Rule allowed paid sick leave or expanded family and medical leave on an intermittent basis only where the employer consented to the leave.  The district court struck down this consent requirement because the Final Rule failed to explain why blanket employer consent is a prerequisite to FFCRA leave.  The DOL reaffirms this requirement and provides an extensive explanation for it, noting that this explanation is a supplement to the Final Rule and not a replacement.

The DOL explains that the requirement for employer consent is “consistent with longstanding FMLA principles governing intermittent leave,” noting that FMLA leave is permitted where a medical need or an agreement between the employer and employee exists.  When intermittent leave is not required for medical reasons, that leave must be carried out in a manner that minimizes business disruption.  In such circumstances, the DOL notes that intermittent leave under the FMLA “balances 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.”  In the context of taking leave to care for a child whose school or childcare facility closes due to the pandemic, medical necessity is not applicable, so the need to minimize disruption of the employer’s business is required.  The DOL essentially extends this requirement for intermittent leave under the FMLA to the FFCRA and concludes that employer consent is appropriate.

Notably though, employer approval is not always necessary, such as where an employee seeks FFCRA leave in full-day increments to care for a child whose school is operating on an alternate day schedule.  The DOL instructs that a full day of leave under these circumstances is not intermittent under the FFCRA, and thus, the employee does not need employer consent.  For purposes of the FFCRA, the DOL views each day of school closure as a separate reason for leave that ends when the school opens the next scheduled day.  This is also true where a school closes for longer or shorter alternating schedules, such as half-days.

The DOL Clarifies That an Employee Seeking FFCRA Leave Must Provide Supporting Documentation as Soon as Practicable

The FFCRA is silent about any specific documentation an employee must provide to an employer before taking leave.  However, under the Final Rule, the DOL required an employee to provide her employer with certain documentation as a prerequisite to leave.  The district court invalidated that requirement due to its inconsistency with the FFCRA.  The DOL now amends the Final Rule to provide that supporting documentation is not a requirement for obtaining leave, but rather the employee must provide it as soon as practicable.  In most cases, this will be when the employee provides notice of leave.  However, an employee does not need to provide the documentation prior to taking paid leave.  The DOL also revised its guidance regarding the EFMLEA by requiring advanced notice of leave as soon as practicable.

The DOL Updated Its FAQs Regarding the FFCRA and the Impact of the Southern District of New York’s August Ruling

The DOL updated its FAQs regarding the FFCRA and the updated version is located here.  These updates address the new revisions to the DOL’s FFCRA paid leave rules.  These FAQs also state that, based on the district court’s order and the specific circumstances of the case, the DOL “considers the invalidated portions of the FFCRA paid leave regulations vacated nationwide, not just as to the parties in the case.”

Looking Forward

The DOL’s regulatory changes have an immediate impact on who can take paid leave under the FFCRA, especially for those employees prohibited from taking leave under the old sweeping definition of “health care provider.”  These changes, however, will narrow the scope of leave by permitting only those employees who have available work to take paid leave under the FFCRA and by permitting intermittent leave only when an employer consents to it.  Employees will also need to be mindful about providing notice of leave to their employers as soon as practicable and in advance, if foreseeable.

Our lawyers are ready to help you navigate these and all other employment issues arising from the current public health crisis.




[i] The decision was issued on August 3, 2020 in State of New York v. United States Department of Labor, No. 20-CV-3020 (S.D.N.Y.).  Our related Client Alert can be found here.

[ii] The DOL’s revisions to the FFCRA paid leave regulations and related explanations can be found here.

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