The Target Moves Again: DOL Revises FFCRA Regulations


September 15, 2020

A New York federal judge recently issued a decision that invalidated certain provisions of the U.S. Department of Labor (DOL) regulations interpreting the provisions of the Families First Coronavirus Response Act (FFCRA). Because the judge left a number of unanswered questions with respect to what employers were supposed to do as a result of that decision and, additionally, because there were concerns with regard to the position the DOL would take going forward, employers were forced to hold their breath and wait for the issuance of new regulations. They were finally issued last Friday night.

Healthcare Exemptions:

Originally, the DOL regulations broadly exempted healthcare employees from the coverage of the FFCRA and available paid and extended leave. The exemption was so broad that it could have excluded, for example, custodial employees in a healthcare facility. The new regulations narrowed the scope of the exemption to those employees most closely associated with providing patient care. The rule specified that such areas as IT, building maintenance, human resources, cooks, etc. would not be excluded from eligibility for leave and payments specified in the FFCRA. Please contact us for further details.

Leave and Available Work:

One of the issues of greatest concern in the judge’s decision was his conclusion that even if an employer did not have available work for an employee who otherwise qualified for leave, because of, for example, a full or partial closure of the business or furloughs, the FFCRA leave had to be paid. That led to the anomalous situation in which, as an example, if ten employees were furloughed, but only two of them qualified for FFCRA leave, those two employees would be eligible for paid leave, while the other eight employees would not. The DOL, in its revised regulations, did not back off its original position that in order for a “leave” to take place, there had to be available work for the employee to take leave from.

Intermittent Leave:

In the original DOL regulations, in order for employees to take intermittent leave under the FFCRA, the employer’s consent was required. In other words, an employer could insist that any FFCRA leave for which an employee qualified had to be taken on a single continuous basis rather than intermittently. The judge held that if the leave was based upon situations such as an employee’s positive test for COVID or situations in which a recent exposure to a person who may have COVID may lead to a positive test, that requirement was valid. In those situations the employer would not want the employee to return to work, and potentially infect others in the workplace. However, with respect to leave related to unavailable childcare or closed school, the judge held that there was no logical basis for the DOL to require employer consent for intermittent leave.

In response, the DOL reaffirmed its original position that intermittent FFCRA leave still required the consent of the employer. However, certain exceptions were carved out by the new regulations. More specifically, in a hybrid situation in which, for example, students may attend school every other day or attend school for only two or three consecutive days or for half days only, the DOL concluded that such leave was really not “intermittent.” Rather, the DOL determined that in that situation, “intermittent leave is not needed because the school literally closes…and opens repeatedly.” Those situations were distinguished from the scenario in which the school is closed for some period of time, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. The DOL noted that under those circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.

Documentation:

In the original FFCRA regulations, it was required that employees provide documentation prior to leave under the FFCRA. As a side note, due to the practicalities involved, many employers applied that requirement in a very “relaxed” fashion. In its revised regulations, the DOL provided that, as under the legacy FMLA, documentation need not necessarily be provided before the leave begins but rather as soon as it becomes practicable to provide it. If documentation is available prior to the start of the leave, such as when a school or daycare announces a closing at some point in the future, documentation should be provided as soon as it is available.

In addition to the regulations released last Friday, the DOL added three FAQs that address the judge’s decision and the new regulations. Those new FAQs are available on the DOL COVID-related website at https://www.dol.gov/agencies/eta/coronavirus.

As noted in our last Alert, it is important that employers keep track of developments in this area. It has proved to be one of the more fluid areas of employment law in the last years and undoubtedly will continue to be.

Labor and Employment:

Abbey Moland
amoland@mcgrathnorth.com
(402) 633-9566

Aaron Clark
aclark@mcgrathnorth.com
(402) 633-9580

Ruth Horvatich
rhorvatich@mcgrathnorth.com
(402) 633-1521

Steve Bogue
sbogue@mcgrathnorth.com
(402) 633-1491

Cody Brookhouser-Sisney
cbrookhouser-sisney@mcgrathnorth.com
(402) 633-6891

Diana Morales McFarland
dmoralesmcfarland@mcgrathnorth.com
(402) 633-9563

Britni Summers
bsummers@mcgrathnorth.com
(402) 633-6894

 

 

Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.

For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.

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