In response to a recent New York federal trial court ruling invalidating key aspects of the U.S. Department of Labor's (DOL) Families First Coronavirus Response Act (FFCRA) regulations, which limited the availability of emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) in certain contexts, the DOL issued revised regulations to clarify workers' rights and employers' responsibilities regarding these paid leave entitlements.
The court's decision vacated the following provisions of the DOL's FFCRA regulations:
- Limits on FFCRA leave when no work is available
- Limits on employee use of intermittent leave
- Notice and documentation requirements for leave
- The definition of health care provider
The court ruled that DOL's initial rules unlawfully were overly broad and limited an employee from taking FFCRA leave without sufficient explanation. Notably, the DOL's revised regulations only expand the availability of paid leave with respect to narrowing the definition of "health care provider," but otherwise reaffirm and provide additional explanation and support for its initial rules.
In response to the court's decision to vacate the DOL's work-availability requirement, which prevents furloughed employees from being eligible for paid leave, the DOL maintained its original reasoning noting that the requirement is consistent with U.S. Supreme Court precedent of applying the ordinary meaning of a statute, and Family Medical Leave Act principles. The FFCRA states that "an employer shall provide its employee FFCRA leave to the extent that the employee is unable to work (or telework) due to a need for leave "because" of or "due to" a qualifying reason for leave under FFCRA sections 3102 and 5102(a)." The revised regulations explain that the terms "because," "due to," and similar statutory phrases have been repeatedly interpreted by the Supreme Court to require "but-for" causation. On this basis, the DOL reaffirmed its rule that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a "but-for" cause of his or her inability to work.
With respect to the DOL's original rule requiring employer approval for intermittent FFCRA leave, the DOL notes that "[i]t is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid 'unduly disrupting the employer's operations.'" The DOL further explains that this general principle best meets the needs of businesses by being carried through to the COVID-19 context, by requiring employer approval for such leave.
The DOL did however amend its notice and documentation rule to clarify that the documents employees are required to provide their employer regarding their need to take FFCRA leave need not be provided "prior to" taking EPSL or EFML, but rather may be given as soon as practicable, which in most cases will be when an employee provides notice of the need for the leave.
While most employers' responsibilities in response to the revised DOL regulations remain unchanged, health care employers will need to consider how the new regulations impact the availability of EPSL and EFML for those employees who are no longer considered "health care providers," under the now narrow definition. The court believed the original definition of "health care provider" was overly broad and resulted in the exclusion of too many employees from being able to utilize FFCRA leave (e.g., anyone employed at health care facilities, medical schools and/or locations "where medical services are provided"). Under the revised regulations, an employee is a healthcare provider only if the individual is capable of providing health care services.
Additionally, the DOL has updated its FAQs to address the revised regulations, which can be found here (see FAQs 101-103).
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