Effective September 16, 2020, the U.S. Department of Labor has broadened paid leave entitlements under the FFCRA, and modified by the Coronavirus Aid, Relief, and Economic Security Act, for health care workers and clarified a number of other employer obligations. The new rules come after a New York federal court judge struck down the Department of Labor’s initial attempt to provide employers with some clear guidance for operating within the contours of the FFCRA. The Department of Labor’s updated guidance addresses exclusions for health care providers and important clarifications for all other employers subject to the FFCRA.
Narrowed “Health Care Provider” Definition
The Department of Labor’s updated definition of “health care providers” is important because it excludes those workers for whom employers may exercise the option to exclude from the paid or partially paid leave benefits under the FFCRA. The new definition embraces only employees who are health care providers under the Family Medical Leave Act (FMLA) and those providing diagnostic, preventive, or treatment services other services that are integrated with and necessary to the provision of patient care.
Previously, “health care providers” excludable from leave benefits included “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary education institution offering health care instruction, 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 institution, employer, or entity.” This definition went on to include any individual employed by an entity that contracts with any of these institutions, as well as anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical supplies.
As the New York District Court explained, the former definition “hing[ed] entirely on the identity of the employer” and should have focused on the “skills, role, duties, or capabilities” of the employee. In effect, the provision swept much too broadly and included certain employees of health care facilities “whose roles [bore] no nexus whatsoever to the provision of healthcare services.” The Department of Labor responded to the District Court’s order with a more limited definition, thereby, narrowing the exclusion previously available for employers and broadening the scope of health care providers who may take paid or partially paid leave under the FFCRA.
Important Paid Leave Clarifications for Other Employees
The Department of Labor additionally clarified a number of compliance issues. Specifically, the new rules:
- Reaffirm that employees can only take leave if there is work available from which to take leave;
- Reaffirm that employees must still obtain their employer’s approval to take leave on an intermittent basis;
- Clarify that employees must provide their employer with information to support the need for leave as soon as practicable; and
- Clarify that when employees may be required to give their employer notice of family and medical leave.
The following sections provide a more detailed discussion of these four requirements.
Work Availability Requirement
The Department of Labor reaffirmed its position that leave may only be authorized under the FFCRA when an employee has work from which to take leave and an FFCRA qualifying reason precludes the employee from that work. An employee thus cannot take leave under the FFCRA if the employer has no work for the employee, regardless of whether the employee has a FFCRA qualifying reason for taking leave. In legal terms, the qualifying reason must be the “but-for-cause” of the employee’s inability to work. Additionally, the Department amended its rules to expressly apply the work-availability requirement to all six qualifying reasons for FFCRA leave.
Employer-Approval Requirement for Intermittent Leave
The Department reaffirmed and explained its rationale for requiring employer approval to take intermittent FFCRA leave. At the outset, the Department noted that Congress had said nothing in the FFCRA about intermittent leave and instead granted the Department broad regulatory authority to effectuate the purposes of and ensure consistency between the emergency paid sick leave and expanded family and medical leave provisions of the Act.
The Department elaborated that approval for intermittent leave was in large part based on authorization for such leave under the FMLA. Under the FMLA, intermittent leave is only available in certain circumstances. Those circumstances are: 1) a medical need for intermittent leave taken due to the employee’s or a family member’s serious health condition, which the employer may require to be certified by a health care provider; 2) employer approval for intermittent leave taken to care for a healthy newborn or adopted child; or 3) a qualifying exigency related to service in the Armed Forces.
The Department determined that neither the first nor the third circumstances for leave under the FMLA have application in the FFCRA context. Turning to the qualifying reasons for FFCRA leave, the Department confirmed that the only appropriate qualifying reason for intermittent leave is an employee’s need to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19. Even for this qualifying reason, intermittent leave is contingent upon the employer’s consent.
The other qualifying reasons for FFCRA leave are not appropriate for unrestricted intermittent leave. According to the Department, this is because intermittent leave for such reasons would be inconsistent with Congress’ stated intention with the FFCRA to slow the transmission of COVID-19. For jobs that can be accomplished remotely, however, nothing precludes an employer from approving intermittent leave for any qualifying reason under the FFCRA.
Under the new guidance, an employer may require an employee to furnish documentation of the need for leave “as soon as practicable,” which in most cases will be when notice is provided. More precisely, an employer may require an employee to furnish as soon as practicable: 1) the employee's name; 2) the dates for which leave is requested; 3) the qualifying reason for leave; and 4) an oral or written statement that the employee is unable to work. The employer may require the employee to furnish additional documentation for certain qualifying reasons.
Related to the documentation requirement, an employer may insist on notice for emergency paid sick leave, but only after or on the first day of leave taken. For expanded family and medical leave, notice may be required as soon as practicable; if the need for leave is foreseeable, this will generally mean providing notice before taking leave.
For example, if an employee learns on Monday morning before work that his or her child's school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school's closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.
The Department of Labor’s new guidance provides some welcome clarification for employers. To be sure, employers in health care fields now lack broad discretion to deny leave benefits under the FFCRA and, as such, must adapt quickly to provide paid and partially paid leave benefits for qualifying reasons. For other employers, the Department’s affirmation or clarification of the work-availability, employer-consent, documentation, and notice requirements provide a helpful framework within which to manage the ongoing and unpredictable challenges of maintaining a healthy workforce during the ongoing COVID-19 pandemic.
 See New York v. U.S. Dep't of Labor, No. 20-CV-3020, 2020 U.S. Dist. LEXIS 137116 (S.D.N.Y. Aug. 3, 2020).
 As noted in our March 26, 2020, blog addressing the FFCRA, organizations with less than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability, if the leave requirements would jeopardize the viability of the business as a going concern. See our March 26, 2020 blog addressing FFCRA here.
 FFCRA leave is available in six qualifying circumstances: 1) being subject to a Federal, state, or local quarantine or isolation order related to COVID-19; 2) being advised by a health care provider to self-quarantine due to COVID-19 concerns; 3) experiencing COVID-19 symptoms and seeking a medical diagnosis; 4) caring for another individual who is either subject to a Federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns; 5) caring for the employee's son or daughter whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons; and 6) experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services.
 For example, authorizing an employee who has been experiencing COVID-19 symptoms (qualifying reason no. 3) and thus presents an elevated risk of transmitting the virus to return to work intermittently would be inconsistent with the purpose of the FFCRA -- to slow the spread of the coronavirus.