On Friday, September 11, 2020, the U.S. Department of Labor issued a Temporary Rule updating the regulations for the Families First Coronavirus Response Act (“FFCRA”). The Temporary Rule substantially narrows the scope of the law’s exclusion for healthcare providers, so employers relying on that exclusion are advised to reassess their policies for compliance. The Temporary Rule also clarifies certain eligibility requirements for emergency paid sick and family leave.

The Temporary Rule is a response to a federal court ruling invalidating certain portions of the original rule. A link to the Temporary Rule—which is currently unpublished but will be officially published and take effect September 16, 2020—can be accessed here. For more background on the federal court decision invalidating the original rule, see our August 3rd client advisory located here.

Narrowed exclusion for healthcare providers

Under the FFCRA, businesses with 500 or fewer employees are required to provide paid sick and family leave to their employees, which is funded by the federal government. An employer can elect to exclude any employee who is a “health care provider.” In the midst of the pandemic, when the rules were first issued, the Secretary of Labor broadly defined “health care provider” to include anyone who worked in a healthcare facility and anyone who worked for a company that provided goods or services to a healthcare facility.

Last month, a New York federal court invalidated the broad definition, creating significant compliance uncertainty for employers in the healthcare industry. Under the revised regulations, only employees who “provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” can be excluded from the paid leave provisions of the FFCRA. See Temporary Rule, p. 6. As outlined in more detail in the Temporary Rule, certain positions, such as nurse assistants, are integrated with and necessary to the provision of patient care, while other positions, such as records managers and billers, are “too attenuated” to meet the revised definition. The DOL acknowledges that the application of the new definition to certain positions, such as lab technicians, will require a “role-specific analysis.” Id. at p. 30 & n. 26.

Despite court ruling, DOL stands firm on the requirement that employer approval is required for intermittent leave

The NY court’s decision also invalidated the FFCRA rule requiring employer consent before an employee could take intermittent leave. Despite the adverse court decision, the DOL elected to stand firm and instead simply provide additional explanation and rationale for the requirement.  

The DOL’s reaffirmation likely provides sufficient cover for an employer to deny requests for intermittent leave—at least employers outside New York. However, with the flood of FFCRA litigation in the works, an employer should seek guidance from counsel to better understand the potential exposure risks from such a denial. And there are also potential reputational concerns to consider before denying requests for intermittent leave.

DOL reaffirms that work must be available

The Temporary Rule also reaffirms that if work is not available—for example, because employees have been furloughed or the facility is permanently or temporarily closed—paid leave is not available. Id. at p. 11. The NY federal court invalidated this portion of the rule in part because the requirement only applied to some of the reasons for taking leave. In response, the DOL revised the requirement to require the availability of work for all six of the qualifying reasons for leave.

The Temporary Rule further clarifies that if an employer changes an employee’s schedule or otherwise makes work “unavailable” in an effort to avoid the paid leave requirements, the action might be impermissible retaliation under the FFCRA. Id. at p. 13.

As with intermittent leave, an employer denying requests for paid leave on the basis that work is not available should first consult with counsel. While the DOL’s reaffirmation likely provides an affirmative defense to any claim, the interpretation is subject to challenge in court and it may be prudent to take certain steps in advance of any denial.

Advance notice for leave not necessarily required

The NY court also invalidated the original rule’s requirement that an employee provide advance notice of the need for leave. In response, the DOL revised the notice requirements stating that an employee should notify his or her employer “as soon as practicable.” Id. at p. 37. While advance notice is often practicable and thus required, the DOL recognized that an employee may not be able to provide notice of the need for sick leave—or leave based on school closures—in advance.

Parker Hudson attorneys are available to answer any questions or concerns you have regarding the implications of this temporary rule, and changes you may need to make to ensure continued compliance with the FFCRA’s requirements.