September 23, 2020 The U.S. DOL’s Revised FFCRA Final Rule
KEEPING YOU INFORMED…
We are writing to alert you that the U.S. Department of Labor has issued a revised final rule regarding employee leave pursuant to the Families First Coronavirus Response Act (“the FFCRA”), which includes both the Emergency Family and Medical Leave Expansion Act (“the EFMLEA”) and the Emergency Paid Sick Leave Act (“the EPSLA”).[1]
The Revised Rule, which is currently in effect, makes “revisions and clarifications” to the FFCRA rules that the DOL issued on April 1, 2020 (“the Original Rule”).[2] The Revised Rule was issued in response to an August 3, 2020 New York Federal Court decision striking down parts of the Original Rule.
This memo addresses the following topics: (1) when employer consent is required for intermittent leave; (2) when employees must provide the required notice and documentation to the employer; (3) the work availability rule; and (4) who constitutes a “health care provider” for purposes of exclusion from FFCRA benefits.
Intermittent Leave
With one very important new caveat, the Revised Rule, like the Original Rule, provides that intermittent FFCRA leave can only be taken if: (1) the employer agrees; and (2) the employee is either teleworking or taking an EPSLA or EFMLEA leave because the employee’s child’s school, place of care or care provider is closed or unavailable. Conversely, intermittent leave is prohibited if: (1) the employer does not agree; or (2) the employee is reporting to work and the employee’s reason for taking FFCRA leave is anything other than childcare.
The caveat is that, now, employer approval is not required for employees who take EPSLA or EFMLEA leave only on those days needed to care for their children whose school is operating on an alternate day (or other hybrid-attendance) basis.
Therefore, an employee may take leave, for example, on Monday, Wednesday and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so.[3] This is because the DOL does not consider leave for hybrid instruction situations to be “intermittent leave” but, instead, a series of one-day leaves where the need for leave begins each day school is closed and ends the next day when school is open. We recognize that, practically speaking, this is largely a distinction without a difference with respect to when the leave can be taken.[4] Nevertheless, it applies only to EPSLA and EFMLEA childcare-based leaves where the child’s school is operating on a hybrid model.
When Notice and Documentation Must Be Provided
Both the Original Rule and the Revised Rule state that, with the exception of leaves in which a child’s school, place of care or care provider is closed or unavailable, employers may not require that employees provide advance notice of the need for leave for an EPSLA-qualifying reason. Instead, employees can provide this notice after the first workday or portion of a workday that the employee takes the leave. For EPSLA and EFMLEA leaves in which the child’s school, place of care or care provider is closed or unavailable, and the need for leave is foreseeable, the employee can provide the employer with notice “as soon as practicable.”
The Revised Rule does, though, change when employees must provide documentation to the employer. Pursuant to the Revised Rule, employers may no longer require documentation “prior to” the start of the leave. Instead, documentation may be given as soon as is practicable, “which in most cases will be when the employee provides notice.” Nevertheless, the rules with regard to what documentation an employee is required to provide to an employer when seeking an EPSLA or EFMLEA leave have not changed.[5]
The Work-Availability Requirement
The Revised Rule makes clear that, if an employer does not have any work for the employee to perform, the employee is ineligible for any FFCRA leave. In other words, the reason the employee is taking leave “must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she” was taking leave (e.g., the employer’s business is closed; the employee is already on a different type of leave, such as FMLA; etc.). This is how we have always interpreted the Original Rule. However, because of a flaw in how the Original Rule was written, it was invalidated by the federal court. The DOL has now re-established the work availability requirement without the flaw that existed in the Original Rule.
Importantly, an employer cannot avoid granting FFCRA leave by refusing to give an employee work, because doing so would constitute prohibited retaliation. As the DOL explains, “[t]here must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform. This may occur, for example, where the employer has temporarily or permanently ceased operations at the worksite where the employee works or where a downturn in business forces the employer to furlough the employee for legitimate business reasons.”
The Definition of Health Care Provider
The FFCRA allows employers to exclude employees who are “health care providers” (and those who are “emergency responders”) from taking EPSLA or EFMLEA leave. In the Revised Rule, the DOL altered the definition of who is a “health care provider” for these purposes to include only the following:[6]
1. A doctor of medicine or osteopathy;
2. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors;[7]
3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;
4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
5. Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits;
6. A health care provider listed (in #1-5) above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country;
7. Nurses, nurse assistants, medical technicians, and any other persons who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care;
8. Any other employee who provides diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision, order, or direction of, or providing direct assistance to any of the people listed (in #1-7) above; and
9. 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 Rule makes clear that “[e]mployees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.”
As a result, employers should re-evaluate any categories of employees that they have designated as exempt from eligibility for FFCRA leave benefits because they are “health care providers” in order to determine whether those excluded categories are consistent with the revised definition.
If you have any questions regarding the implementation of the requirements of FFCRA, please contact Adam Ross, Alyssa Zuckerman or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2020
[1] For more information about FFCRA leaves, including when an employee is eligible for leave pursuant to the EPSLA or EFMLEA, see our March 25, April 3, April 15 and August 28, 2020 memoranda.
[2] The DOL issued a “correction notice” for the Original Rule on April 10, 2020.
[3] This should be distinguished from the situation “where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule.” In this case, intermittent leave is not permitted without employer approval.
[4] Notably, there is nothing in the Revised Rule that prohibits an employer from requiring a new leave request for each day of the non-intermittent FFCRA leave in these situations, including, among other things, a statement from the employee that no other suitable person is available to care for the child.
[5] As described in our April 15, 2020 memorandum, in order to be eligible for an EPSLA or Emergency FMLA leave, employees are required to provide “documentation containing the following information” to their employer: (i) their name; (ii) the dates(s) for which leave is requested; (iii) the qualifying reason for the leave; and (iv) an “oral or written statement that the employee is unable to work” because of the qualifying reason for leave. Depending on the type of leave requested, the employee must provide the following additional information: Employees subject to a quarantine or isolation order may be required to provide the name of the government entity that issued the order. Employees advised to self-quarantine may be required to provide the name of the healthcare provider that advised them to self-quarantine. Employees caring for an individual may be required to provide either: (i) the name of the government entity that issued the quarantine or isolation order to that individual; or (ii) the name of the health care provider who advised that individual to self-quarantine due to COVID-19-related concerns. Employees caring for their child must provide: (i) the name of the child(ren); (ii) the name of the school, place of care or child care provider that has closed or become unavailable; and (iii) a representation that no other “suitable” person will be caring for the child during the employee’s leave period. Employers entitled to tax credits pursuant to the FFCRA may also require from their employees any additional documentation required by the IRS.
[6] The definition of a “health care provider” for purposes of advising an employee of the need to quarantine/isolate or to diagnose COVID-19 symptoms is different than the definition of a “health care provider” for purposes of the exemptions to FFCRA leave benefits, and remains unchanged from the Original Rule.
[7] This definition applies only to chiropractors that are engaged in “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X–ray to exist.”