By Alexis Knapp, Bill Allen and Jeff Nowak

Law360 (September 16, 2020, 1:32 PM EDT )

Alexis Knapp

Bill Allen

Jeff Nowak

On Sept. 11, the U.S. Department of Labor issued revised regulations under the Families First Coronavirus Response Act following the U.S. District Court for the Southern District of New York's decision that invalidated a handful of regulatory provisions interpreting the FFCRA.

Although the DOL was widely expected to address the court decision through revised regulations and/or court action, these new regulations throw additional curveballs for employers already struggling to comply with extensive COVID-19-related legislation. 

Decision Invalidating Parts of Rule and DOL's Response

On Aug. 3, the Southern District of New York struck down four parts of the FFCRA's final rule:

1. The requirement that leave under the Emergency Paid Sick Leave Act, or EPSLA, and the Emergency Family and Medical Leave Expansion Act, or EFMLEA, are available only if an employer has work available for the employee from which leave can be taken — known as the work availability requirement;

2. The requirement that an employee must have employer consent to take FFCRA leave intermittently;

3. The definition of an employee who is a health care provider, who an employer may exclude from use of FFCRA leave; and

4. The requirement that employees must provide their employers with certain notice and documentation before taking FFCRA leave — rather than after the leave begins. 

In response, the DOL has issued revised regulations[1] in which it clarified and doubled down on some of its original positions, while making some regulatory changes in line with the court's ruling.

While neither the court's opinion and order, nor the DOL's revised regulations, explicitly address whether the court decision applied nationwide, the DOL acknowledged that it viewed the decision as applying nationwide in its new FAQs,[2] and the agency's efforts to resolve the problems from the decision are indeed applicable to all employers covered by FFCRA. 

In its revised regulations, set to be published and take effect on Sept. 16, the DOL:

• Reaffirms that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave, and provides its reasoning for why this precondition is critical;
  
  
• Confirms that intermittent leave under the FFCRA can only be taken with employer approval;
  
  
• Provides an amended definition of "health care provider" that is narrower than its original regulations to cover employees who are health care providers under the classic Family and Medical Leave Act definition, as well as other employees who are employed to provide diagnostic, preventive or treatment services, or other services that are integrated with and necessary to the provision of patient care; and
  
  
• Clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation.

DOL Stands Firm on the Work Availability Requirement

Under the DOL's original rule, one of the requirements for taking FFCRA leave — under both the EPSLA and EFMLEA — is that the employer must actually have work available for the employee to perform when the need for FFCRA leave occurs. If the employee is not scheduled to work — whether due to a furlough, business closure or otherwise — there is no work from which to take leave.

In vacating this rule, the court found that the DOL's "barebones explanation" for the work availability requirement was deficient in that it did not provide sufficient analysis as to the reason why work must be available for leave to be available. The court's decision to strike down the work availability requirement stood in contrast to long-standing FMLA regulations, which make clear that periods of time when an employee would not otherwise be expected to work do not count against an employee's FMLA leave entitlement.[3] 

In its new final rule, the DOL held firm that an employer must have work available for an employee in order for the employee to be eligible for FFCRA leave. In other words, the employee's FFCRA reason for leave must be the sole (but-for) reason they are not working. In doing so, the DOL made clear:

[I]f there is no work for an individual to perform due to circumstances other than a qualifying reason for leave — perhaps the employer closed the worksite (temporarily or permanently) — that qualifying reason could not be a but-for cause of the employee's inability to work. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.

In its analysis, the DOL observed, "leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave." The DOL also revisited one of the FFCRA's core purposes of discouraging employees who might be likely to spread the virus from reporting to work, and pointed out that work must be available for that purpose to be effectuated.

Notably, the agency cautioned that removing the work availability requirement would lead to "perverse" results. Take, for instance, an employer that closes its doors or limits business hours and furloughs employees, none of whom would receive pay for being off work. Under the court's reading, a furloughed employee with a qualifying reason for FFCRA leave could take EPSLA or EFMLEA leave, even when the business is otherwise closed or lacks available work.

As the DOL noted, this employee would be paid during this period of leave, while their co-workers who do not have a qualifying reason for FFCRA leave would not be paid. As such, the DOL stood firm in its position on the work availability requirement, and reinforced that employees on furlough or temporary layoff status are more appropriately directed to contact their unemployment agency, rather than seek paid leave from their employer.

The DOL underscored, however, that employers may not arbitrarily withhold work in order to thwart an employee's ability to take leave and emphasized that the unavailability of work must be due to legitimate, nondiscriminatory, nonretaliatory business reasons.

Definition of Health Care Provider

The FFCRA permits employers to exclude health care providers from some or all forms of leave under the EPSLA or EFMLEA. In its original rule, the DOL provided an expansive definition of "health care provider" for FFCRA purposes that focused on the types of employers that could exercise the exemption. 

In striking down the DOL's broad, original definition, the court noted that any definition of health care provider must require "at least a minimally role-specific determination" of who is capable of providing health care services, depending upon the skills, roles, duties or capabilities of the employees, and may not hinge "entirely on the identity of the employer."

In other words, the court held that a health care employer would need to undertake a position-specific analysis of whether someone met the definition of health care provider before deciding whether leave was permitted, and that the definition of health care provider should also be much narrower — which would, in theory, permit more employees to take FFCRA leave. When it invalidated the DOL's original definition, the court referred only to the very narrow definition of health care provider under the classic FMLA, leaving a regulatory gap for the DOL to again try to fill.

In response, the DOL crafted a definition that focuses on employees whose duties or capabilities are directly related to the provision of health care services or are so integrated to the provision of such services so as to adversely impact patient care if not provided. Accordingly, the new regulations remain far broader in scope than the classic FMLA definition of health care provider, while eliminating those employees whose services are not related or integral to provision of health care services.

More specifically, for purposes of that exemption, the DOL revised the regulatory definition of health care provider to include only employees who: (1) meet the definition of that term under the existing FMLA regulations; or (2) 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 and, if not provided, would adversely impact patient care."

Existing FMLA Regulations

The existing FMLA regulations define health care provider to include doctors of medicine and osteopathy and "others capable of providing health care services." The definition also includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants and certain Christian Science practitioners. 

Somewhat circularly, the existing FMLA regulations also recognize health care providers from whom an employer or employer's group health plan's benefits manager will accept certification of a serious health condition for purposes of substantiating a claim for benefits.

Newly Revised FFCRA Regulations

To fill the gap left by the court, the DOL asserts that the scope of health care services for purposes of the FFCRA must take into account the context of a pandemic and encompass a broader range of services than in the limited, classic FMLA context of diagnosing serious health conditions and filling out medical certifications. 

The DOL underscored that a broader definition of health care provider for purposes of the exemption is justified because "those employees' services are important to combating the COVID-19 public health emergency and are essential to the continuity of operations of our health care system in general" and thus, their absences from work would be "particularly disruptive."

Consequently, the DOL drew upon the definition of "health care service" in the Pandemic and All-Hazards Preparedness and Advancing Innovation Act to identify relevant health care services. The revised FFCRA regulations clarify the various types of services that constitute health care services as follows:

• Diagnostic: Taking or processing samples, performing or assisting in the performance of X-rays or other diagnostic tests or procedures, and interpreting test or procedure results;
  
  
• Preventive: Screenings, checkups and counseling to prevent illnesses, disease or other health problems;
  
  
• Treatment: Performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments; and
  
  
• Integrated: Services that are "integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples."

Consistent with the focus on employees rather than employers, the revised FFCRA regulations specifically identify the following types of employees who may continue to be excluded from taking FFCRA paid leave: 

• Nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services;
  
  
• Employees providing such services "under the supervision, order, or direction of, or providing direct assistance to" a health care provider; and
  
  
• Employees who are "otherwise integrated into and necessary to the provision of health care services," such as laboratory technicians who process test results necessary to diagnoses and treatment. 

The revised regulations then 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."

The DOL provided an illustrative list of typical work locations where employees providing health care services may work, including the following:

[A] doctor's office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided.

The specifically identified locations match the list in the original FFCRA regulations, while the catchall is similar to the original regulations but eliminates "similar institution, Employer, or entity" as a modifier to the locations. Of course, an employee need not work at one of these enumerated facilities to be a health care provider for FFCRA purposes, and working at one of these facilities does not necessarily mean an employee is a health care provider.

Intermittent Leave Still Requires Employer Consent — But "Intermittent" May be Defined Differently Than Employers Previously Thought

In striking down the DOL's rule on intermittent FFCRA leave, the court questioned the DOL's blanket requirement that an employee have employer consent to take intermittent FFCRA leave, finding that the DOL had not explained its rationale for such consent. Sticking to its original position, the DOL stood firm in these new regulations on its position that intermittent FFCRA leave is available only when the employer consents, but offered an extensive rationale for its position.

In contrast to the FMLA, the FFCRA itself does not address intermittent leave, giving the DOL broad regulatory authority to fill this statutory gap. In revisiting its original regulations, the DOL noted that the classic FMLA regulations generally provide for intermittent leave only for certain qualifying reasons — e.g., where intermittent leave is medically necessary — or where the employee and employer agree to an intermittent leave arrangement, such as for bonding leave following the birth or placement of a child.

The DOL further harkened back to the classic FMLA regulations, which require that, when the need for leave is foreseeable, it must be scheduled in a way that is minimally disruptive to business operations — leading the DOL to reinforce the requirement of employer consent for FFCRA leave.

In the case of leave to care for a child whose school or place of care is closed, medical necessity is not an applicable framework. Thus, the DOL noted that FFCRA leave obligations should "balance 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."

Leave in this instance, according to the DOL, is akin to an employee taking intermittent leave to bond with a child after childbirth or placement into adoption or foster care. Consequently, intermittent FFCRA leave can only be taken with the consent of the employer.[4]

Notably, however, the DOL's use of the term "intermittent" seems to have taken on some new substance. More specifically, the preamble to the DOL's new regulations address administration of FFCRA leave when an employee's child participates in hybrid learning in which schools operate on adjusted or alternating schedules.

Here, each day of school closure "constitutes a separate reason for FFCRA 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 an employee does not need employer consent to take off Monday, Wednesday and Friday due to their child's school closure, because Monday, Wednesday and Friday are separate school closures, each entitling the employee to FFCRA leave. 

Easing Documentation and Notice Requirements in Certain Instances

In its decision, the Southern District of New York invalidated the final rule to the extent it required the employee to provide documentation prior to taking FFCRA leave, as it rendered some of the statutory provisions unworkable. 

Taking note of the court's admonition, the DOL tweaked the existing regulations to clarify that any documentation required under Section 826.100 need not be provided before leave begins, but rather may be given "as soon as practicable, which in most cases will be when the employee provides notice" of the need for FFCRA leave. 

Further, in situations where an employee seeks EFMLEA leave to care for a child whose school or place of care is closed, the DOL confirmed that the employee must provide the employer with notice of leave as soon as practicable under the circumstances. If EFMLEA leave is foreseeable, such as in instances where the employee learns in advance that school will be closed, the DOL anticipates that the employee generally will provide notice before taking leave.

New FAQs

In conjunction with issuing revised regulations, the DOL updated and added to its FAQs to reflect the new guidance in the following ways, as of the publication of this article.

First, the updated FAQs note an employee must provide their employer with the required documentation and information as soon as practicable.

Second, the FAQs regarding intermittent leave under both the EPSLA and EFMLEA are updated to provide that an employee whose child's school or place of care is closed, may still only take leave under the FFCRA intermittently if the employee and the employer agree. The example given is that if you have another family member watch your child on Tuesday and Thursday, but cannot work on Monday, Wednesday and Friday, you would need employer approval to use the leave intermittently.

However, in line with the amendment discussed above, the FAQ notes that if an employee's child's school or place of care is closed on alternating days, leave may be used intermittently even without employer permission, because it is really being used in single, full-day increments and is not, in fact, intermittent.

Third, the DOL also amended the FAQ providing who is a health care provider to track the updated definition, and added FAQs 101-103 specifically addressing the effect of the New York court decision and the new regulations. 

Next Steps for Employers

There certainly is some good news for employers here, as the DOL provides a commonsense application of the work availability rule that we expect will enjoy a much stronger chance of surviving legal challenge in the future. The new rule also carefully balances an employer's operational needs with an employee's need for time off in the intermittent leave context.

Nevertheless, employers still are left with both legal and practical questions. As an initial matter, the DOL's regulatory changes have immediate impact on health care employers, particularly those that have exempted some or all of their employees from FFCRA leave between April 1 and now as a result of the DOL's initial, sweeping rule regarding health care providers. 

Employers that exempted their entire workforce based on that initial rule will need to promptly consider any appropriate communication efforts explaining these developments and the application of the FFCRA to certain workers, as well as immediately comply with the FFCRA's posting requirements. Health care employers also will need to undertake an analysis of their workforce to determine their legal position, in light of the revised rule, on which positions within their organization would likely be eligible for FFCRA leave, or ineligible based on the remaining scope of the exemption.

All employers also need to carefully consider and evaluate requests for FFCRA leave for child care unavailability and school closures due to COVID-19, recognizing that the concepts of closure and intermittent leave have taken new and/or additional shape under the revised rule and the DOL's updated FAQs on this issue. The realities of the fall 2020 school year have posed new challenges employers have not faced before, under a legal framework that is still very new and needing constant interpretation and analysis.

Employers also should determine what their strategy will be for mitigating risk with regard to situations where they may have relied on the original rule or earlier FAQs to deny FFCRA leave to someone they did not deem eligible at the time — based on any number of reasons. This may be particularly true in health care for those workers who employers determined were not eligible for FFCRA leave under the April 1 version of the rule, but also for other employees who may have been deemed ineligible as the understanding of things like school closures and virtual learning have so dramatically evolved. 

This is certainly not an exhaustive list, but represents some of the immediate issues employers are working through in recent days since the revised rule was issued. Employers are encouraged to continue considering these issues, as they push to finish the FFCRA race that began just five short months ago, and which could be gone in just a few more — yet another bizarre reality of the COVID-19 pandemic.

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Alexis Knapp, Bill Allen and Jeff Nowak are shareholders at Littler Mendelson PC.

Lauren Marcus and Emilie Hammerstein, shareholders at the firm, contributed to this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-20351.pdf.

[2] https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

[3] For example, FMLA regulations provide: "[I]f for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement." 29 C.F.R. § 825.200(h).

[4] The DOL also noted that while employees working at the employer's work site must take EPSLA leave on a continuous or block basis in situations where the employee has been ordered or advised to quarantine or self-isolate, is experiencing symptoms of COVID-19 or is caring for an individual who was ordered to quarantine or self-isolate or who is experiencing symptoms, employees who are teleworking may use EPSLA leave intermittently if their employers consent.

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