DOL Issues Amended FFCRA Regulations in Response to New York Federal Court Ruling
September 14, 2020
By: Thomas M. Cunningham
On September 11, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced amendments to regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The amendments were issued in response to a New York Federal District Court’s recent decision invalidating portions of the regulations. New York v. U.S. Dep’t of Labor, 2020 WL 4462260 (S.D. N. Y. Aug. 3, 2020). Questions existed whether the New York decision had nationwide application. Given that the Court did not issue a nationwide injunction or a “vacatur without remand” [the functional equivalent under the Administrative Procedure Act], and the Court did not provide any guidance on the scope of its decision, the majority view was that the Court’s order was not applicable outside the State of New York, subject to further review. On the same evening DOL announced its amendments to FFCRA regulations, however, it also amended its FFCRA Questions and Answers page to state publicly that DOL considered the Court's ruling to apply nationwide. Nyemaster Goode’s Labor and Employment department and COVID -19 Rapid Response Team have been closely monitoring the DOL’s potential response to this decision.
The revised regulations will take effect immediately upon their official publication in the Federal Register on Wednesday, September 16, 2020. The amendments can be found here. Although the revisions primarily clarify and reaffirm the interpretation and application of the regulations by the DOL that existed before the Court ruling, a significant change has occurred regarding which employees are included in the definition of a “health care provider” who may be exempted from FFCRA coverage. Our previous articles about the FFCRA can be found here.
Below is a summary of the amendments to the FFCRA regulations:
1. The Work Availability Requirement
What the Court Did. The most concerning part of the decision for employers was the Court’s striking of one of the most fundamental features of the FFCRA: the work-availability requirement found in 29 C.F.R. 826.20(a)(2),(6), (9), and (b)(1). To summarize , the FFCRA grants paid sick leave to employees who are “unable to work (or telework)” due to a need for leave because of any six COVID-19-related criteria, and expanded FMLA leave to employees who are “unable to work (or telework)” due to a need for leave to care for a son or daughter (under 18 years of age) if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions. The DOL interpreted the “due to” and “because” language as “but for” causation. In other words, the employee was not entitled to FFCRA benefits if the employee was furloughed due to lack of work because the employee had no need for “leave” from a job from which they had been furloughed.
The Court held that was not the case. Rejecting the DOL’s argument that the statutory language compelled that interpretation – and that the work availability requirement applied to all 6 qualifying reasons for paid sick leave as well as the expanded FMLA leave – the court observed that the regulations as written applied the work availability requirement to only 3 of the 6 qualifying conditions for paid sick leave and to expanded FMLA leave. Instead, the court held the FFCRA was ambiguous as to whether it required “but for” causation in all circumstances. Rather, the Court held that the statutory language was susceptible to the construction that multiple sufficient causations satisfied the eligibility criteria. The Court found the distinctions in the regulations among the different qualifying criteria arbitrary and capricious and struck the work availability requirement in its entirety from the regulations.
What the Amendment Does. 29 C.F.R. §826.20(a)(3) and (a)(4) are amended and paragraph (a)(10) is added to make clear that the work availability requirement applies to all six of the qualifying reasons for emergency paid sick leave and to expanded FMLA leave. The amendments are explicit with the addition of the sentence in each section: “An employee who [specific qualifying reason] may not take Paid Sick Leave where the Employer does not have work for the Employee.” Thus, the work availability requirement is uniform regardless of the qualifying reason and remains unchanged.
2. Intermittent FFCRA Leave
What the Court Did. The Court struck the provisions in 29 C.F.R. §826.50(a) –(c) that permit employees to take paid sick leave or expanded FMLA leave intermittently only with the employer’s consent. The employer consent requirement survived only to the extent it banned intermittent leave based on qualifying conditions that implicate an employee’s risk of viral transmission.
What the Amendment Does. As the Court based its decision on the fact that DOL had not provided a sufficient rationale for its rule, DOL provided extensive reasoning and clarification of the rule. The regulation itself has not been amended and DOL maintains that it will interpret the regulation as written - employees may take paid emergency sick leave or expanded FMLA leave intermittently only with the employer’s consent regardless of the qualifying reason. The DOL commentary to the amendments provides this clarification: “Employees are not required to use up their entire FFCRA leave entitlement the first time they face a qualifying reason for taking FFCRA leave. . . . Taking leave at a later date for a distinct qualifying reason is not intermittent leave.” Again, as a result, FFCRA leave may be taken on an intermittent basis only with employer consent, and the DOL encourages employers to be generous with that consent.
3. Notice and Documentation Requirements.
What the Court Did. The Court struck that portion of 29 C.F.R. §826.100 that requires the employee to provide documentation of the need for leave prior to taking the leave. The Court held this requirement regulated out of existence both the statutory notice exception for unforeseeable leave and the statutory 1-day delay for paid sick leave notice.
What the Amendment Does. The DOL amended §826.90(b) to clarify that an employee is required to give notice of expanded FMLA leave to the employer “as soon as practicable.” Section 826.100(a)(1) also was amended to require the employee provide documentation of the need for leave as soon as practicable, which in most cases will be when notice is provided under section 826.90.
4. Complete Revision of the Health Care Provider Exemption.
What the Court Did. The Court struck the expanded definition of “health care provider” in 29 C.F.R. §826.30(c)(1). The FFCRA incorporated by reference the FMLA’s definition of health care provider. The FFCRA also included authorization for the DOL to promulgate regulations that permitted employers to exclude employees who are “health care providers” and “emergency responders” from FFCRA paid sick leave and expanded FMLA leave. Section 826.30(c )(1) of the FFCRA regulations broadened the definition of health care provider within that exemption to include anyone employed at a business that provided health care services; the definition was sufficiently broad that it included employees who did not provide health care services at all, such as a receptionist or a janitor. The Court held that expanded definition exceeded the DOL’s statutory authority under the FFCRA; the definition and exemption cannot turn entirely on the identity of the employer. Accordingly, the Court invalidated that exemption from FFCRA benefits to employees who do not meet the standard FMLA definition of health care provider.
What the Amendment Does. The DOL has completely revised the definition of “health care provider” in §826.30(c )(1), as to which employees may be excluded from FFCRA benefits. The new definition of “health care provider” is limited as follows:
- Physicians and others who make medical diagnoses – that is, all health care providers as defined under the FMLA and FMLA regulations at 29 C.F.R. §§ 825.102 and 825.125. 29 C.F.R. §826.30(c )(1)(i)(A).
- Employees who, by virtue of their roles and duties, are capable of providing “health care services,” such as diagnostic services, preventative services, treatment services, or “other services that are integrated with and necessary to the provision of patient care.” 29 C.F.R. §826.30(c )(1)(i)(B). The regulation expressly identifies nurses, nurse assistants, medical technicians and other persons who directly provide patient services (and those who do so under their direction), lab technicians who process test results and samples, x-ray and other similar diagnostic technicians, pharmacists, physical therapists and others providing treatment services.
- The regulations make clear that employees who do not provide health care services are not health care providers within the meaning of the FFCRA exclusion 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, records managers, consultants, and billers. 29 C.F.R. §826.30(c )(1)(iii).
The takeaways are several:
- First, the work availability requirement and employer-consent-to-intermittent-leave requirement remain intact and unchanged; the amendments serve only to clarify and reaffirm those requirements and resolve any inconsistencies in the regulatory language.
- Second, to the extent employers have been denying or delaying FFCRA leave until documentation of the need for leave was in their possession, the amendments make clear the notice and documentation requirements are satisfied if the documentation is provided “as soon as practicable,” even if the leave already has commenced. Thus, employers should adjust their practices accordingly.
- Finally, if an employer has excluded certain employees from FFCRA benefits because they were classified as health care providers under the former regulatory definition, and those employees do not fall within the amended definition, the employer should address (and if necessary, rectify) those situations on a going-forward basis. The new regulations likely cannot and will not be enforced retroactively, and employers have a substantial argument that they were entitled to rely on the regulations as written until amended.
Nyemaster Goode’s Labor & Employment Department has been assisting our clients in FFCRA compliance since the statute’s passage. Please do not hesitate to contact us with any questions about the FFCRA or the applicability of these regulatory amendments to your business.