On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations, clarifying and redefining eligibility for receiving emergency paid sick leave and emergency family and medical leave under the Families First Coronavirus Response Act (FFCRA). While most of the DOL’s revised regulations served to clarify its previous positions and construction of the FFCRA, the DOL adopted a new definition of “healthcare provider” for purposes of the FFCRA’s healthcare provider exemption, and, in so doing, expanded the class of employees in the healthcare industry who are eligible to receive FFCRA leave.
The DOL issued the revised regulations in response to a recent decision by the U.S. District Court for the Southern District of New York that upended various aspects of the agency’s prior rulemaking issued in April of this year. See New York v. United States DOL, 2020 U.S. Dist. LEXIS 137116 (S.D.N.Y. Aug. 3, 2020).
On August 3, 2020, the court struck down those parts of the DOL’s prior rulemaking that: (1) prohibited employees from taking leave if the employer does not have work available for the employee (work availability requirement); (2) required employees to secure their employer’s approval to take FFCRA leave on an intermittent basis; and (3) required employees to provide their employers notice and certain documentation before taking FFCRA leave. The court also rejected the DOL’s interpretation of the law’s exclusion for “healthcare providers.”
In its updated regulations, the DOL affirmed its prior positions regarding the work availability requirement and employer approval for intermittent leave, but narrowed the exclusion for “healthcare provider,” and eased some of the documentation and notice requirements for employees seeking emergency paid sick leave or emergency family and medical leave under the FFCRA.
DOL Affirms Work Availability Requirement
In its initial regulations, the DOL took the position that employees were ineligible to receive either emergency paid sick leave or emergency family and medical leave if their employer did not have work available for them to perform. Accordingly, if an employer closed its business or canceled work shifts for business reasons (i.e. lack of work), the employer was under no obligation to provide either emergency paid sick leave or emergency family and medical leave under the FFCRA.
After “carefully consider[ing] the district court’s opinion” the DOL indicated it would adhere to its prior position that an employer must have work available for its employees in order for its employees to qualify for FFCRA leave. The DOL explained that the enumerated criteria for receiving leave under the FFCRA must constitute the “but-for” cause of the employee’s inability to work. If other factors, like a facility closure, also prevent the employee from fulfilling his or her normal job functions, then the employee is ineligible to receive paid leave under the FFCRA. The DOL noted that an employee who has been furloughed or temporarily laid off is more appropriately directed to contact their unemployment agency rather than seek paid leave from their employer.
DOL Affirms Necessity of Employer Approval for Intermittent Leave
The DOL also stood firm on its position that employer approval is required to take intermittent leave under the FFCRA in situations where leave is permitted by the statute. The DOL appealed to the longstanding principle applicable to FMLA intermittent leave that such leave should, where foreseeable, avoid “unduly disrupting the employer’s operations.”
The DOL further clarified that employer approval is not required for employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis, given that each day the school/facility is closed counts as a separate qualifying event for FFCRA leave.
DOL Adopts a Narrower Definition of “Healthcare Provider” Under the FFCRA
In its updated regulations, the DOL announced that, for purposes of the healthcare provider exemption under the FFCRA, it will construe the term “healthcare provider” more narrowly. While previously the DOL broadly interpreted the exclusion to encompass anyone employed at a facility where healthcare services are offered, the DOL now limits the exclusion to employees who meet the definition of a “healthcare provider” under the FMLA regulations, or who are themselves “capable of providing, and employed to provide, (1) diagnostic, (2) preventative, or (3) treatment services, or (4) services that are integrated with and necessary to diagnostic, preventative, or treatment services and [which], if not provided, would adversely impact patient care.” The DOL clarified that it is not enough that an employee simply works for an entity that provides healthcare services.
With this revision, the DOL ensured that the scope of the FFCRA’s healthcare exemption does not “hinge entirely on the identity of the employer,” but instead focuses on the “skills, role, duties or capabilities [of the employee].” Importantly, those employees whose services are not related or integral to the provision of healthcare services will remain eligible to receive FFCRA leave. In its revised regulations, the DOL identified IT professionals, building maintenance staff, HR personnel, food service workers, and records managers as examples of employees whose services are not “integrated” into the provision of patient care and therefore do not meet the DOL’s revised definition of “healthcare provider.”
DOL Eases Documentation and Notice Requirements for Employees Seeking Leave
Finally, in its revised regulations, the DOL clarified that employees need not provide the documentation identified in the regulations for requesting FFCRA leave prior to taking paid sick leave or expanded family and medical leave, but rather may provide the documentation as soon as practicable. The DOL noted that, in most cases, this will be when the employee initially provides notice of his or her need for FFCRA leave. However, when the need for leave is foreseeable, such as when an employee seeks emergency family and medical leave to care for a child whose school or place of care announced a closure, the DOL anticipates that the employee will provide notice in advance of taking leave.
The DOL’s revised regulations take effect on September 16, 2020. For most employers subject to the FFCRA, the eligibility requirements for granting FFCRA leave have not changed.
The DOL continues to recognize the work availability requirement and has affirmed the necessity of employer approval for intermittent leave under the statute. Meanwhile, employers in the healthcare industry who have relied on the FFCRA’s healthcare provider exception should reconsider whether they still qualify for the exemption.