On Friday, September 11, 2020, the Department of Labor (DOL) released revised regulations for the Families First Coronavirus Response Act (FFCRA). These changes were in part a response to the federal lawsuit in the Southern District of New York that invalidated portions of the previous regulations as of August 3, 2020.   The DOL’s revised regulations go into effect this week, on September 16, 2020.

As a general overview, the FFCRA provides two separate paid leave entitlements in response to the COVID-19 pandemic:

• Emergency Paid Sick Leave (EPSL), and
• Emergency Family and Medical Leave (EFML or expanded FMLA).

EPSL provides two weeks (up to 80 hours) of paid leave to employees who satisfy any one of six qualifying reasons:

• Subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• Has been advised by a health care provider to self-quarantine related to COVID-19;
• Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
• Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
• Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services.

The expanded FMLA leave provides a new basis for up to 12 weeks of FMLA leave which applies if an employee cannot be available for work based upon a need to provide care for their child(ren) whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. Additional information regarding the amount of pay provided under both paid leave entitlements can be found in our previous client alert discussing the FFCRA.

The new regulations issued on Friday September 11th, as well as a few additions to the DOL’s Question and Answer document (Q&A Nos. 101-103), provide four modifications to the previous leave administration policies.  Those four changes and clarifications, which go into effect on September 16^th, are discussed below.

Availability of Work

In Friday’s statement of clarification, the DOL first reaffirmed that the leaves provided under the FFCRA are only available for employees who have work available for them. If an employer has closed, laid-off, or furloughed its employees, those employees would not be eligible for paid leave under the Act. The original rule appeared to limit this requirement to three out of the six reasons for EPSL. However, the clarification makes clear the requirement that there be work available to the employee is a qualifying condition for leave based upon all six reasons for EPSL as well as EFMLA.

The DOL specifically states in the revised temporary rule that employers must be careful to avoid reducing an employee’s hours or furloughing them because the employer believes they intend to use FFCRA leave. An employer who engaged in such practices might be found in violation of the DOL’s anti-retaliation rules.

Approval for Intermittent Leave

The revised regulations and updated DOL guidance also offer additional explanation for the requirement that an employee receive employer permission to use FFCRA leaves intermittently. First, intermittent leave is available only in the case of expanded FMLA for child care purposes if the employee is reporting to the worksite. It may be available for the other five qualifying reasons for leave if the employee is teleworking. In both cases, the employee must generally seek the employer’s approval, including when the employee will telework intermittently.

Second, where the employee seeks permission to use the expanded FMLA leave every other day while their student’s school is 100% virtual, relying on another family member to provide care on the alternate days, that leave would be treated as intermittent and would require employer approval so as to avoid excessive disruption to the workplace. However, where the student is enrolled in a hybrid school program requiring them to be present at the school on Monday and Tuesday, but requiring the student to participate virtually on Wednesday through Friday, the parent could take expanded FMLA leave Wednesday through Friday without specific employer approval. That leave would not be considered intermittent. For purposes of the FFCRA, the school is considered closed whenever the particular student is not permitted to attend in person. The exception does not apply if the parent had a choice between in person and virtual schooling and chose to enroll their student in the virtual option.

Definition of “Health Care Provider”

An employer is able to exempt “health care providers” from the leave entitlement provisions of the FFCRA.  The DOL revised its definition of “health care provider” for the purpose of who may be excluded from eligibility for the FFCRA leaves. The DOL made clear this definition was different than the definition of “health care provider” as it applied to those individuals who direct an individual to quarantine.

As it applies to those individuals an employer may exclude from the FFCRA leaves, a “health care provider” is one who 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. The intent of the DOL is to focus on the particular employee’s role within the provision of medical services rather than what services the employer generally provides. The definition is limited to those who are capable of providing health care services and may include nurses, nurse assistants, medical technicians, and other directly related services, such as lab technicians. It would not include IT professionals, building maintenance staff, human resource personnel, cooks, food service workers, records, managers, consultants, and billers, even if those individuals work for a hospital or medical service provider. Those individuals who qualify as “health care providers” may be excluded from the FFCRA leaves at the discretion of their employer.

Timing of Supporting Documentation

The final clarifications the DOL provided related to supporting documentation in order to be entitled to leave under the FFCRA. The revised regulations now explain that documentation supporting the necessity of FFCRA leave must be provided “as soon as practicable” rather than “prior to” taking leave. That may frequently be after the first day of leave, and may likely be at the time the employee gives notice that he/she will use the leave. With respect to notice of a need for child care leave, contrary to the “as soon as practicable” expectation for the other types of leave under the FFCRA, when the need for child care leave is foreseeable, advance notice must be provided before the leave begins. In the event a school or child care facility closes without advance warning, the need for child care leave must also be provided as soon as practicable.

This alert provides a summary of the changes that were promulgated in the Department’s recent modified rules. This revised rule takes effect on September 16, 2020. If you have additional questions or concerns related to these modified rules, please contact Lauren Burand, lburand@buelowvetter.com or (262) 364-0258, Claire E. Hartley, chartley@buelowvetter.com or (262) 364-0260, or your Buelow Vetter attorney.