The United States Department of Labor (“DOL”) issued revised regulations on Friday, September 11, 2020 (the “Revised Regulations”). The Revised Regulations go into effect on September 16, 2020.
The Revised Regulations accomplished the following:
1. Affirmed that the emergency paid sick leave (“EPSL”) and expanded family and medical leave (“EFMLA”) provisions of the FFRCA (together, the “FFCRA Leave”) may be taken only if the employee is actually employed and working. Employees who have been “furloughed” or laid off are not eligible for FFCRA Leave;
2. Affirmed that employees who wish to take FFCRA leave on an intermittent basis must obtain their employer’s approval;
3. Limited the definition of “health care provider” who can be excluded from the EPSL or EFMLA provisions of the FFCRA to only those employees who meet the definition of a health care provider under the FMLA, or who are “employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which if not provided, would adversely affect patient care”; and
4. Clarified that employees must give employers information to support the need for FFCRA Leave as soon as practicable (rather than requiring notice in advance of taking the leave).
Discussion
The first two areas addressed by the Revised Regulations merely affirm what most employers have already incorporated into their practices. The DOL first affirmed that an employee is only eligible for FFCRA Leave if the “qualifying reason” he or she needs the leave is the actual reason the employee is unable to work. In other words, if the employer has no work for the employee to do (and, as a result, the employee is laid off or furloughed), then the employee is not eligible for FFCRA Leave, even if a need for the leave arises. The DOL was quick to emphasize that this clarification does not mean that an employer can take steps to make work for an employee “unavailable” after he has requested leave, as that type of adverse action would constitute illegal retaliation.
The Revised Regulations then affirmed that an employee seeking to take intermittent FFCRA Leave (where such intermittent leave is permitted by law) must obtain the employer’s approval for such a leave and explain the basis for the request. This applies to employees who are coming to the worksite as well as employees who are teleworking. The DOL did point out, importantly, that employees who take FFCRA Leave in full-day increments to care for their children whose schools are operating on some sort of a hybrid model are not taking “intermittent leave.” If a school is physically closed to students on a particular day and then re-opens on a different day, the DOL considers each closed day a separate qualifying event for FFCRA Leave purposes.
Next, the Revised Regulations made a significant change to the range of employees who can be excluded from FFCRA Leave. The FFCRA allows employers to exclude employees who are “health care providers” from eligibility for FFCRA Leave. The purpose of this exclusion is to prevent disruptions to the health care system’s ability to respond to the COVID-19 public health emergency. In its initial regulations, the DOL had interpreted the term “health care provider” broadly, to cover virtually everyone employed by a health care facility or provider, regardless of whether the particular employee seeking leave provided any health care services. The Revised Regulations narrow the definition of a “health care provider” to those employees who are providing or capable of providing (and employed to provide) health care services. The Revised Regulations go on to describe categories of employees who would not be considered “health care providers,” including IT professionals, building maintenance staff, HR professionals, cooks, food service personnel, records managers, consultants and billing clerks.
This narrowing is important to employers in the health care sector, because some of their employees who are not providing health care services may have previously been excluded from paid leave eligibility. Employers in this sector should review their policies and practices to be sure that, on a going forward basis, employees who are eligible for FFCRA Leave are granted that leave.
Finally, the Revised Regulations clarified that an employee is not obligated to provide his employer with notice of the need for FFCRA leave “prior to” taking that leave, recognizing that this requirement would be impossible in many circumstances. Instead, an employer is permitted to require notice from its employees “as soon as practicable.”
While the Revised Regulations mostly affirmed what many employers are doing already (with the exception of those in the health care sector), this is a good opportunity to be sure that your policies and practices are compliant with the law, which remains in effect until December 31, 2020.
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Please contact Heather Hammond (hhammond@gravelshea.com) at Gravel & Shea PC if you have questions or would like assistance.
