[co-author: Daniel Fishman]

The Families First Coronavirus Response Act (“FFCRA”) in March required employers to implement new forms of paid leave during the height of the pandemic. Since then, eligibility questions have arisen as employees try to take advantage of the leave and courts scrutinize the U.S. Department of Labor (“DOL”)’s related regulations. Thankfully, the DOL recently provided answers to some frequently asked questions regarding leave under the FFCRA.

1. Leave Eligibility Changes as Schools Re-Open

The start of the school year brings renewed attention to the FFCRA. The statute provides paid leave for employees who need to care for a child whose school or childcare provider is “closed” for reasons related to COVID-19. As schools determine whether to teach remotely or in-person, employers are faced with making eligibility determinations in this evermoving environment. The DOL published FAQs #98-100 in late August to help employers and employees understand when a school is deemed “closed” and therefore paid leave is available in each circumstance.

The FAQs address the popular hybrid learning model chosen by most Massachusetts school districts. In a hybrid model, children attend school part of the week while learning remotely on the remaining days. The DOL considers a school “closed” for the purposes of FFCRA leave eligibility on days when a school does not permit students to learn in-person. Therefore, for employees with children learning in a hybrid model, paid leave under the FFCRA is only available on the days of the week that the students must learn remotely.

The DOL also recognized that many school districts will start the school year with only remote instruction with the intent to re-open for in-person learning as health circumstances change. The availability of paid leave under the FFCRA is ultimately based on whether the school is open for in-person instruction. As a result, an employee’s eligibility for leave will change if a school changes its model from remote to hybrid or in-person.

Paid leave under the FFCRA is not available when schools are open for in-person learning, but caregiving employees choose to have their children continue remote learning. The DOL reasoned that leave is unavailable because the school is not “closed” under the statutory definition. The DOL noted that paid leave may still be available for caregivers if the child is under a quarantine order or has been told by a health care provider to self-isolate or self-quarantine.

2. Questions Answered After Regulations Invalidated

The DOL also added three FAQs clarifying the impact of a recent court decision invalidating several provisions of the FFCRA’s regulations. On August 3, 2020, the United States District Court for the Southern District of New York struck down the portions of the regulations that:

• Required that employers have work for their employees to perform for them to be eligible for FFCRA leave;
• Required that employees obtain their employers’ approval before taking intermittent leave;
• Required documentation of the need for leave prior to taking leave; and
• Broadly defined “health care provider” as anyone working at a doctor’s office, hospital, pharmacy, post-secondary educational institution offering healthcare instruction, and similar entities for the purposes of exempting such persons from eligibility for leave.

The remaining parts of the regulations, which went into effect on April 1, 2020, were unaffected.

The decision, New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), left uncertainty regarding the continued viability of these rules in other states. The DOL settled this issue by publishing FAQs #101-103 on September 11, 2020. The DOL clarified that the court’s decision applies nationwide. The same day, however, the DOL announced revisions to the regulations to respond to the decision. The revised regulations did the following:

• Reaffirmed and further explained why employers must have work for their employees to do for them to eligible for FFCRA leave. The revisions also clarify that this requirement applies to all qualifying reasons for leave.
• Reaffirmed and further explained why employers must approve intermittent leave.
• Clarified that employees must provide documentation supporting their need for leave to their employers as soon as practicable.
• Narrowed the definition of “health care provider” for the purposes of exemption to include only employees who meet the definition of that term in the Family and Medical Leave Act (“FMLA”) regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services necessary to the provision of care.

The revised regulations went into effect on September 16, 2020.

3. Takeaways

Employers should inform staff of these changes and update their policies accordingly. Specifically, employers should:

• Continue to assess whether work is available for an employee to perform when the employees seek to take leave, regardless of the qualifying reason for the leave.
• Continue to review and approve requests for intermittent leave, including determining on-going eligibility. For example, many employees may have already exhausted their FFCRA leave when schools were closed in the spring.
• Allow documentation of the need for leave to be submitted as soon as practicable. If the need for leave is foreseeable, however, this may mean that prior notice is required.
• Any employers with workers who met the broad definition of “health care providers” in the regulations should reevaluate whether these workers continue to be exempt under the revised regulations.

Employers should otherwise continue to adhere to the FFCRA regulations effective April 1, 2020. The question remains whether the DOL’s revisions and explanations of the reaffirmed regulations will be sufficient to withstand any further challenges in the courts. Check back for updates as we continue to monitor this issue and other related to the FFCRA and COVID-19.

Please note that the legal issues surrounding COVID-19 are developing rapidly and may become outdated.