On September 16, 2020, the U.S. Department of Labor published emergency regulations (making them effective as of the day of publication) revising certain portions of the Families First Coronavirus Response act (FFCRA) in response to a decision from a federal court in New York finding certain portions of the previous regulations invalid.

The court had struck down four important provisions of the existing regulations relating to:

• The work-availability requirements
• Employer consent to intermittent leave
• The definition of “health care provider”
• Documentation required for leave

The court’s decision left many employers wondering how to implement FFCRA leave. The DOL’s revised regulations provide welcome new clarity and further certainty.

The DOL proverbially “doubled down” on its positions on work availability and intermittent leave. Reasoning that the court’s decision striking down those two provisions related to a lack of explanation, the DOL “stuck” to its prior position, but provided further explanation for the regulations. The DOL did, however, make revisions to the regulations regarding the definition of a “health care provider” who may be exempted from FFCRA leave, and to the documentation requirements.

Work-Availability

The revised regulations confirm that workers must have work available in order to be eligible for FFCRA leave. Employees who are on furlough, or who are on a leave of absence due to lack of work, are not eligible for FFCRA leave.

Intermittent Leave

In addition, the DOL maintained its requirement that certain types of leave under the FFCRA cannot be taken intermittently—namely, when the employee is working on site and needs leave because he or she has been advised to self-quarantine or isolate by a medical provider or government order, if he or she is experiencing symptoms of COVID-19 and seeking a diagnosis, and if he or she is caring for an individual who is subject to a self-quarantine or isolation order. The DOL also re-affirmed that any other type of leave under the FFCRA may only be taken intermittently with the employer’s consent.

One item of note in the revised regulations is the DOL’s interpretation of what constitutes “intermittent leave.” First, the DOL clarified that an employee may take FFCRA leave for two or more different qualifying reasons, which does not constitute intermittent leave. Second, with respect to schools operating in a “hybrid” model where children learn onsite some days and are remote other days, the DOL stated that each day the school closes is a new qualifying event. As a result, a parent who needs leave on Monday, Tuesday and Wednesday each week because those are the days the child is learning remotely, but can work Thursday and Friday while the child is in school, is not taking intermittent leave. However, a parent whose child is in school 100-percent virtually, but who needs leave only on Monday and Tuesday, but can work Wednesday through Friday because the parent can find someone else to watch the child on those days, is requesting intermittent leave. Similarly, a parent who wishes to work half-days every day due to care for a child whose school is 100-percent virtual in the mornings is also requesting intermittent leave.

“Health Care Provider”

Under the prior regulations, the definition of “health care providers” who could be excluded from FFCRA coverage was broad enough to cover every employee of a hospital or medical practice. The new regulations narrow the definition of a “health care provider” to include only two types of employees. First, a “health care provider” is a doctor, nurse, nurse practitioner or other professional who is permitted to issue a health certificate under FMLA. This is a broad category that may include chiropractors, dentists and licensed clinical social workers, for example. The second group includes employees “who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.” This category includes employees such as lab technicians, patient transporters, those who provide counseling on diabetes prevention or managing stress, or those who provide non-medical patient care such as bathing, feeding and dressing patients. It does not include employees working in IT, human resources, administration or billing.

Documentation

The prior regulations had required certain information to be provided “prior to” an employee taking leave. The court had held that this requirement was inconsistent with statutory language requiring notice after the first day of leave or as practicable. The DOL’s revised regulations now require that an employee provide notice of the need for leave “as soon as practicable,” but notes that in many cases this will be at the same time as the employee requests leave.

For the most part, employers (other than those in the health care field) will breathe a sigh of relief that the DOL’s revised regulations will not have a significant impact on the way they had understood and administered FFCRA leave.

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