On Friday, the U.S. Department of Labor (“DOL”) issued much-anticipated revisions and clarifications to its Families First Coronavirus Response Act (“FFCRA”) regulations, in response to a U.S. District Court for the Southern District of New York (“District Court”) decision vacating certain portions of the earlier version of the regulations.

As explained in our previous legal alert, on August 3, 2020, the District Court ruled that four parts of the FFCRA regulations relating to employee leave are invalid:

• The definition of an employee who is a “health care provider”;
• The requirement that FFCRA leave is available only if an employee has work from which to take leave;
• The requirement that an employee may take FFCRA leave intermittently only with employer approval; and
• The requirement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

In light of the District Court decision, the DOL reevaluated portions of its FFCRA regulations, reaffirming them in part, revising them in part, and adding further clarification.

Summary of the Revised Regulations

The DOL’s revised regulations do the following:

• Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act (“FMLA”) regulations, and other 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;
• Reaffirm that employees may take paid sick leave and expanded family and medical leave only if work would otherwise be available to them and clarify that this requirement applies to all qualifying reasons to take such leaves;
• Reaffirm employees must obtain employer approval in order to take intermittent paid sick leave and expanded family and medical leave, and explain the difference between intermittent and additional requests for leave; and
• Clarify that employees must provide required documentation supporting their need for paid sick leave and expanded family and medical leave to their employers as soon as practicable, and clarify that employees must provide notice of the need to take expanded family and medical leave to employers as soon as practicable.

Definition of Health Care Provider

As explained in our previous alert (referenced above), under the FFCRA, employers are permitted to exclude employees who are “health care provider[s]” from eligibility for expanded family and medical leave and paid sick leave. After the District Court struck down the definition of “health care provider” in the prior version of the regulations because it found the definition to be “vastly overbroad,” the DOL, in its revised regulations, set forth an amended definition.

Like the prior version of the regulations, the revised version defines a “health care provider” to include employees who fall within the definition of a health care provider under the FMLA (i.e. “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or any other person determined by the Secretary [of Labor] to be capable of providing health care services.”

In addition, the revised regulations state that an employee is also a “health care provider” if he/she is employed to provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” and that if, “not provided, would adversely impact patient care.”

The DOL explains that individuals who provide services that affect, but are not integrated into, the provision of patient care are not covered by the definition. The DOL identifies “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers” as employees who are not “health care providers.” (This list is non-exhaustive.) The DOL further explains that while the services provided by such employees may be related to patient care, “they are too attenuated to be integrated and necessary components of patient care.”

The Work-Availability Requirement

The DOL reaffirms that leave under the FFCRA is only available if the employer has work available to the employee. The regulations make clear that there must be “a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.” The DOL provides the example that such may occur where an 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. Additionally, the DOL clarifies that employee eligibility would not be based on an “hour-by-hour assessment” as to whether work is available, but rather “whether the employee would have reported to work at all.”

Employer-Approval Requirement for Intermittent Leave

The DOL reaffirms employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent leave is permitted. In doing so, the DOL provides an explanation of the difference between intermittent leave and consecutive requests for leave. It explains that intermittent leave is “leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period of leave taken for a single qualifying reason,” and it occurs “only when the employee has periods of leave interrupted with periods of reporting to work (or telework)” (emphasis added).

The DOL provides the following illustrative example:

The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent . . . . In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. . . . For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that. . . . [I]ntermittent leave is not needed because the school literally closes . . . and opens repeatedly.

The DOL explains that the same reasoning applies to longer and shorter alternating school schedules (e.g. where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during weeks in which the child does not attend classes in person). Such a scenario is distinguished from one in which school is closed for a some period of time and the employee seeks leave, only for certain portions of that period, for reasons other than the school’s in-person instruction schedule. The DOL states that in such a case, the employee’s FFCRA leave is intermittent and would require employer approval.

Clarified Notice and Documentation Requirements

The DOL in its revised regulations clarifies that the supporting documentation employees are required to submit to their employers for leave under the FFCRA “need not be given ‘prior to’ taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice [of the need for leave]” (emphasis added).

The DOL also clarifies the timing of notice for employees who take expanded family and medical leave. The revised regulations state that “advanced notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave” (emphasis added).

The DOL provides an example:

[I]f 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.

Overall, the DOL’s revised regulations appear to address the issues highlighted by the District Court. However, even the revised regulations are not immune from further legal challenge. Nonetheless, employers should review their existing policies and practices to ensure they are in compliance with the revised regulations, and keep an eye out for any further guidance issued by the DOL on this topic.