By Alan Rauss & Kirsten Mooney

The U.S. Department of Labor has issued a much anticipated set of regulations regarding the Families First Coronavirus Response Act (FFCRA). The regulations attempt to revise several provisions of the DOL’s original rule that New York District Court Judge Paul Oetkin recently struck down. These new regulations are effective as of Sept. 16, 2020.

The United States District Court Invalidates the DOL’s Original Rule

On April 14, 2020, just days after the DOL released its first rule regarding the FFCRA, the State of New York filed suit in the United States District Court for the Southern District of New York, challenging certain provisions of the rule. The New York District Attorney specifically challenged the DOL’s regulations concerning: (i) leave when an employee does not have “work from which to take leave,” (ii) intermittent leave, (iii) the definition of “health care provider,” and (iv) the FFCRA’s documentation requirements. On Aug. 3, 2020, Judge Oetkin ruled that the DOL exceeded its authority and invalidated the four parts of the rule.

Last week, the administrator of the DOL’s Wage and Hour Division announced the DOL’s new temporary rule in response to Judge Oetkin’s Order, stating that:

“As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever. Today’s updates respond to this evolving situation and address some of the challenges the American workforce faces. Our continuing robust response to this pandemic balances support for workers and employers alike, and remains our priority.”

However, in reviewing the new regulations, it appears that the DOL has left a majority of the rule largely unscathed. While it did make a few revisions – and gave much needed clarity to some provisions unclear to both the amateur and well-trained eye – the DOL chose to instead “reaffirm” and uphold many of its original regulations.

A Breakdown of the New Rule

The following is a summary of the 53-page new rule explaining what the DOL did (and did not) revise in response to the District Court’s Order:

The DOL “reaffirmed” that an employee may only take leave under the FFCRA (both paid sick leave and extended family medical leave) if he or she has “work from which to take leave.” In other words, if there is no work available, no leave is available to the employee.

The District Court’s Order held that the FFCRA’s use of “because” and “due to” were ambiguous as to a causation standard. It further stated that the work-availability requirement was invalid for two reasons: (1) the DOL’s explicit application of the requirement to only three of the six reasons to take leave under the FFCRA was unreasoned and inconsistent with the statutory text, and (2) the DOL altogether failed to sufficiently explain its reason for imposing such a work-availability requirement.

As to the work-availability requirement, the DOL summarized its reasoning as follows:

“[I]f there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.” Thus, “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.”

The DOL further noted that removing the work-availability requirement would not serve one of the FFCRA’s fundamental purposes: to discourage employees who may be infected with COVID-19 from going to work. If there is no work to perform, there is no reason to discourage a potentially infected employee from entering the workplace. And, in addition, it would likely lead to the “perverse result” of an employee being on furlough and not receiving a paycheck, but still qualifying for paid leave under the FFCRA.

Finally, the DOL clarified that its interpretation does not permit an employer to avoid granting FFCRA leave by purposely making work unavailable to the employee. This would be considered impermissible retaliation.

The DOL “reaffirmed” that an employee may only take permissible intermittent leave (i.e. for leave taken to care for a son or daughter because their school or place of care is closed, or their child care provider is unavailable, because of COVID-19) upon the approval of his or her employer.

Unlike other leave laws, such as the Family Medical Leave Act (FMLA), Congress did not address intermittent leave in the explicit text of the FFCRA. Instead, it gave broad regulatory authority to the DOL to effectuate the purposes of the FFCRA. The DOL, thus, interpreted Congress’ omission related to intermittent leave to fall directly in the regulatory authority granted to it.

As a result, the DOL explained that it left these intermittent leave regulations untouched for two main reasons. First, limiting intermittent leave to childcare-related absences furthers its fundamental policy of discouraging potentially infected employees from entering the workplace. The DOL stated that the other medical reasons for taking leave under the FFCRA “correlate to a higher risk of spreading the virus.”

Second, requiring employer approval is consistent with intermittent leave provisions of the FMLA. The DOL stated, “[i]t is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid ‘unduly disrupting the employer’s operations.’ It best meets the needs of businesses that this general principle is carried through to the COVID-19 context, by requiring employer approval for such leave.”

The DOL revised its definition of “Health Care Provider” under the FFCRA.

The District Court’s Order found that the DOL’s definition of “Health Care Provider” was entirely too broad and prohibited too many workers from taking leave. Indeed, the original definition exempted nearly anyone who worked in the healthcare industry, regardless of whether they were an actual health care provider. This included employees we generally think of as health care providers (e.g. doctors and nurses) but also included those who do not give direct medical treatment as well (e.g. pharmaceutical salespersons, janitors in hospitals, etc.).

In response, the DOL has now limited the definition to cover only physicians (and other professionals who make medical diagnoses) as well as those “capable of providing health care services,” including “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

The DOL revised and clarified the notice and documentation requirements under the FFCRA.

The District Court’s Order found that the requirement that the employee give documentation “prior to” taking leave is inconsistent with the statute’s “unambiguous notice provision,” allowing an employer to require an employee provide reasoning for his or her leave only “after the first workday” for paid sick leave or “as is practicable” for expanded family medical leave. In response, the DOL revised the provision to require that documentation be given “as soon as practicable” (rather than “prior to” taking leave).

On a related note, the DOL clarified the notice requirement for employees who take expanded family medical leave. To be more consistent with the FMLA, advanced notice of expanded family medical leave is now required “as soon as practicable.”

With this new rule now in effect, employers should review and amend any policies related to leave under the FFCRA so that they remain up-to-date and consistent with these changes. However, please note that this is an ever-changing situation, and it is likely that other states will also attempt to file similar litigation, attacking various other provisions of the FFCRA. Follow KJK’s coronavirus website and blog posts for the latest information regarding the FFCRA.

For more information, contact Alan Rauss ( / 216.736.7221), Kirsten Mooney ( / 216.736.7239) or any of our Labor & Employment professionals.