The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020. The sweeping federal legislation provides emergency paid sick leave (EPSL) and expanded paid Family and Medical Leave (EFML) to certain covered workers impacted by the COVID-19 pandemic. On April 1, 2020, the U.S. Department of Labor (DOL) issued regulations implementing the FFCRA and answering, at least in part, some questions related to coverage, eligibility, use, and job restoration. We first reported on those regulations when they were issued, and prepared a five-part summary of the FFCRA and the DOL’s regulations soon thereafter.

Judicial Challenge to the DOL’s Regulations

Within days after the DOL promulgated its regulations, the State of New York filed suit challenging the validity of certain portions of the DOL’s regulations. On August 3, 2020, Judge J. Paul Oetken—a federal district court judge for the Southern District of New York—struck down portions of the DOL’s regulations as exceeding the scope of the agency’s authority. Among other findings, Judge Oetken invalidated regulations arbitrarily limiting the intermittent use of FFCRA leave; ruled overbroad the DOL’s definition of “health care providers” who may be exempted from leave entitlement; and decried the DOL’s application of the so-called “work availability” requirement, whereby only employees whose employers have work for them to do are eligible to utilize EPSL or EFML for a covered reason. Judge Oetken was unreserved in his criticism, noting that, although “[t]his extraordinary crisis has required public and private entities alike to act decisively and swiftly in the fact of massive uncertainty, and often with grave consequence,” the crisis “also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail.” The order left many employers uncertain as whether the regulations remained in effect at all, or if so, in what jurisdictions.

The DOL’s Revised Regulations

In response to the decision, the DOL issued an updated temporary rule on September 11, 2020 addressing the issues Judge Oetken highlighted in his August 3 ruling, but the amended rules largely rebuke the Judge’s critique and reinforce the agency’s original interpretation of the FFCRA.

The “Work Availability” Requirement Remains Intact

In the amended rules, the DOL “reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave.” Therefore, if an employer closes an employee’s worksite or the employee is furloughed, he or she is ineligible for FFCRA leave even if otherwise impacted by a COVID-19-qualifying reason because the COVID-19-qualifying reason is not the but-for cause of his or her inability to work. In fact, the only modification the DOL made to the “work availability” requirement in light of the Judge’s Order was to clarify that it applies to all FFCRA-qualifying reasons, not just a handful of them, thus correcting what it dismisses as a drafting oversight in the original.

Employer Consent Still Required To Take Intermittent FFCRA Leave

The DOL also reaffirmed that intermittent FFCRA leave is available only with employer approval, but responded to the Judge’s criticism by (purportedly) providing further context for its rationale. That rationale, however, is a bit circular and relies heavily on the DOL’s discretion as an agency to fill the gaps Congress left behind when quickly drafting the FFCRA. The DOL maintains that the FFCRA does not explicitly address intermittent leave, and therefore does not categorically permit or prohibit intermittent leave. In implementing its discretion as an agency to fill this gap, the DOL concluded that EFML may be taken intermittently, but only with employer consent. With respect to EPSL leave, the DOL reasons that employer consent is required for intermittent leave (and then only when the employee is teleworking and does not present a risk of contagion) because teleworking arrangements already require employer consent; requiring consent is consistent with the general principle that intermittent leave should avoid “unduly disrupting the employer’s operations;” and permitting employer consent instead of requiring certification of medical need for intermittent leave use encourages flexibility.

The DOL did, however, provide some comfort to parents and caregivers whose children are headed back to school on a hybrid schedule, meaning their children attend school in-person on some days and continue distance learning on others. The DOL opined that employer approval is not required for employees to use time off in full-day increments on distance learning days. Although the DOL’s logic is a bit strained, the DOL reasoned that a set hybrid school attendance schedule is not, in fact, intermittent leave, but rather, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” The same logic would apply, according to the Department, where an employee’s child attends half-day in-person classes on a set schedule. Although the reasoning is a bit tortured, the bottom line is that covered employee parents and caregivers struggling with school schedules may use FFCRA leave on days that their children are not attending school in-person.

Harmonization of Notice Requirements

The FFCRA permits employers to require employees to follow reasonable notice procedures to continue to receive EPSL after the first workday of leave. The original DOL regulations required employees to provide documentation regarding the employee’s need to take FFCRA “prior to” taking EPSL or EFML, which was inconsistent with the FFCRA’s plain language permitting notice after a missed workday of leave. The regulations have amended to read that documentation may be given “as soon as practicable,” which in most cases will be when the employee provides notice of need for leave. A small correction, but one that helps harmonize a regulation inconsistent with the predicate statute.

“Health Care Provider” Exemption Narrowed Substantially

The most substantial change to the DOL’s regulations is to the definition of “health care providers” who may be denied FFCRA leave. The FFCRA permits employers to deny FFCRA leave to otherwise qualified employees if they are “health care providers.” The original regulation defined this term very broadly, and Judge Oetken noted in his Order that the definition was so expansive that an English professor or cafeteria worker at a university that also housed a medical school could fall within the exclusion and be exempt from coverage, which could not have been Congress’ intent when it passed the FFCRA. To tighten this exemption, the DOL revised the definition substantially.

As revised, the DOL now has limited the definition of “health care provider” to include those professionals already defined as health care providers under the FMLA, and thus eligible to certify the need for medical leave or unique susceptibility to COVID-19 for purposes of EPSL certification (e.g., medical doctor, osteopathic doctor, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, Christian Science Practitioners). But the DOL also exempts professionals who provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” “It is not enough that an employee works for an entity that provides health care services;” rather, the employee must be capable of providing diagnostic, preventive or treatment services or integrated services that, “if not provided, would adversely impact patient care.” Although not an exhaustive list, the DOL provided examples of three types of employees who may qualify as health care providers under this revised definition. The first includes nurses, nurse assistants, and medical technicians. The second type includes employees providing services under the supervision, order, or direction of, or providing direct assistance to, specifically enumerated health care providers, such as doctors and nurses. The third type includes employees who provide services integrated with and necessary to the provision of patient care, such as laboratory and radiology technicians.

For purposes of further clarification, the DOL offers examples of health care field employees who should not ordinarily be exempted from FFCRA coverage, such as IT professionals, building maintenance staff, HR personnel, cooks and food service workers, records mangers, consultants, and billers. These individuals render services related to patient care, but not integrated and necessary to patient care; in other words, their services are too attenuated to fall within the definition of health care provider. In closing, the DOL reminds employers that the health care provider exemption is not workplace-dependent; some hospital workers will not be health care providers, whereas some employees in pop-up care centers responding to the pandemic will be. The analysis is role-driven and case-specific. Health care industry employers who have uniformly denied FFCRA leave in reliance on the broad definition in the original DOL regulations must revisit their decisions and review each employee’s unique roles and responsibilities vis-à-vis patient care before denying FFCRA leave requests.

Though revisions to the regulations were long-anticipated, the amended rule is somewhat anticlimactic. The only question it does conclusively answer is that the DOL was largely unmoved by the federal district court decision and is continuing to construe the FFCRA narrowly. Should a second legal challenge to the DOL’s authority follow, we will monitor those developments here.