On September 11, 2020, the Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA), which generally requires employers with fewer than 500 employees to provide paid sick leave and expanded Family and Medical Leave Act (FMLA) leave for certain COVID-19 related reasons. (We previously summarized the FFCRA’s leave requirements here.) The revisions are in response to an August 3 New York federal court decision, which held that four provisions of the original regulations were invalid, either because DOL failed to adequately explain its reasoning, or because the court believed that DOL’s interpretations were inconsistent with the FFCRA. The revisions, which go into effect September 16, reaffirm and provide further explanation for two of the provisions and amend two others. Specifically, the revised regulations:

  • Reaffirm that employees are not eligible for FFCRA leave if the employer has no work available for them to perform;
  • Reaffirm that intermittent leave under the FFCRA requires the employer’s consent, and clarify that leave taken because of a child’s hybrid school schedule is not intermittent leave;
  • Narrow the definition of “health care providers” whom employers can exclude from FFCRA coverage; and
  • Clarify when employers can require employees to provide notice of a need for FFCRA leave and supporting documentation.

DOL also updated its FFCRA FAQs to reflect changes to the regulations.

All other provisions of the original regulations are unchanged. DOL’s FFCRA regulations remain in effect through the FFCRA’s current December 31, 2020 expiration date. The revised regulations are discussed in greater detail below.

Work availability rule

The revised regulations reaffirm DOL’s original position that FFCRA leave is not available to employees whose employers have no work available for them. This means that if the employee has no work for the employee to perform (e.g., if the employee is on furlough), the employee is not eligible for FFCRA leave even if the employee has an FFCRA-qualifying reason for leave. The revised regulations clarify that this rule applies to all of the qualifying reasons for which leave may be taken under the FFCRA.

The revised regulations further clarify that the employer must have a legitimate, nondiscriminatory reason as to why work is unavailable (such as temporarily ceasing operations or furloughing employees due to COVID-19). For example, an employer may not place an employee on furlough to prevent the employee from taking FFCRA leave, but an employer may place employees on furlough due to a legitimate business downturn.

Intermittent leave

DOL has also reaffirmed its original position regarding intermittent leave, including that an employee may take intermittent leave only with the consent of the employer:

  • If the employee is working on-site:
    • Intermittent leave is available if the reason for leave is to care for a child whose school or place of care is closed or childcare provider is unavailable, but only if the employer consents. Leave must be taken in full-day increments.
    • Intermittent leave is unavailable for any other FFCRA qualifying reason, in order to avoid the risk that the employee could expose others to the virus.
  • If the employee is teleworking:
    • Intermittent leave is available for any FFCRA-qualifying reason and may be taken in any increment, provided that the employer consents to the intermittent leave schedule.

According to DOL, the employer consent requirement for intermittent leave “balances the employee’s need for leave with the employer’s interest in avoiding disruptions.”

The revised regulations clarify that leave needed because of a child’s hybrid school schedule is not intermittent leave. For example, if the child is required to attend school Monday, Wednesday, and Friday and to do distance learning on Tuesday and Thursday, leave taken to care for the child on Tuesday and Thursday is not intermittent leave and does not require the employer’s consent.

As a reminder, a school is “closed” for purposes of FFCRA leave if the parent does not have a choice to send their child to school. If a parent elects to keep their child home for all of part of the week, the school is not considered “closed” during the time the child stays home at the election of the parent.

Definition of health care provider

The new regulations narrow the definition of “health care providers” whom employers may exclude from the leave provisions of the FFCRA. (The definition of “health care provider” for purposes of determining who can advise an employee to quarantine for COVID-19 reasons remains unchanged). The court found that DOL’s original definition was overly broad because it covered employees whose roles had no nexus to the actual provision of health care services. Under the revised regulations, “health care provider” is now more tightly focused on employees involved in the provision of medical care, and includes only:

  • A licensed doctor of medicine, nurse practitioner, or other health care provider authorized to issue a certification under FMLA regulations; or
  • Any other employee who “is 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.” This includes employees who directly assist or are supervised by a direct provider in providing such services. For purposes of this rule:
  • Diagnostic services include “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 services include “screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems”;
  • Treatment services include “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 and necessary services that, if not provided, would adversely impact patient care, include “bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

Under the revised regulations, the definition of “health care provider” includes, for example, nurses, nurse assistants, medical technicians, and laboratory technicians who process test results to aid in diagnosis and treatment. Excluded are employees who do not themselves provide health care services, “even if their services could affect the provision of health care services,” such as IT professionals, building maintenance staff, human resources personnel, cooks and food service workers, and records and billing employees.

Timing of employee notice and documentation

DOL made two changes regarding when employees must provide notice and documentation of the need for FFCRA leave:

  • Timing of employee notice: The original regulations provided that employers could not require employees to give notice of the need for either paid sick leave or expanded FMLA leave until after the first workday on which such leave is taken. DOL has revised this rule to state that notice may be required for expanded FMLA leave (i.e., leave for childcare reasons) as soon as practicable, which will ordinarily be before the leave is taken, when the leave is foreseeable. The rule regarding timing of employee notice for paid sick leave remains unchanged.
  • Timing of employee documentation: Whereas the original regulations required employees to provide supporting documentation of the need for FFCRA leave “prior to taking” leave, under the revised regulations, documentation is required as soon as practicable. According to DOL, this will normally be at the same time as the employee gives notice. The type of documentation that employees must provide remains unchanged.

Employer takeaways

DOL’s revised regulations eliminate the uncertainty created by the court’s ruling. Employers should follow the revised regulations and conform their leave policies accordingly. This includes ensuring compliance with the latest DOL guidance regarding FFCRA leave for different types of school schedules. Employers should also confirm that their leave request forms are consistent with the changed rules, including on the definition of health care provider, where applicable, and the notice and documentation requirements. Employers previously treating their entire workforce as exempt under the “health care provider” exemption should reconsider whether the revised definition of health care provider requires coverage for some employees.

Because DOL continues to refine its FFCRA guidance, employers should monitor DOL’s website and this blog regularly for the latest updates. As always, please consult one of authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance in implementing compliant FFCRA policies, or with questions about other COVID-19 issues or matters affecting your workplace.