On September 11, 2020, the DOL Issued Revised Regulations for FFCRA in Response to the SDNY Federal Court Rulings. Back in August, the Southern District of New York issued a significant ruling vacating, or at least partially vacating, four provisions of the U.S. Department of Labor’s (DOL) “Final Rule” used to guide employers on administering the Families First Coronavirus Response Act (FFCRA). The Court’s ruling did not specify whether or not the ruling would be enforced nationwide or if it would be limited in geographical scope to the Southern District of New York.
While the DOL was expected to appeal the ruling to the Second Circuit, they instead amended the FFCRA rules in an effort to address the Court’s concerns. The DOL addressed each of the affected provisions and, in some cases, ceded that the Court’s ruling was correct and in others challenged the Court’s ruling. Overall, the amended rules do not pose drastic changes, and, in fact, they read as dismissive of the district court’s ruling.
Given that the DOL seems to have rejected much of the Court’s rulings, it is fair to assume that a new lawsuit will follow. In the meantime, however, employers may want to consider consulting their local legal counsel before making any decisions.
The Court had previously vacated four key aspects of the final rules. In an earlier article, we outlined the original provisions and the Court’s response. Below, we’ve summarized the changes, the DOL’s response, and the employer impact.
Work Availability Provision
Summary: A controversial element of the original final rules, the work availability provision dictated that an employee had to have work available to them if not for one of the six specific reasons listed in the bill. The DOL’s interpretation means that furloughed employees, or those unable to work due to a slowdown or shutdown due to COVID-19, were ineligible for FFCRA Benefits.
Court Ruling: The Court found the work availability requirement impermissible, declaring that the DOL’s explanation was insufficient.
DOL Response: The DOL reaffirmed their stance that employees need to have work available to take FFCRA leave. They state that if the employer would not have had work available for them to perform, even if the qualifying reason did not apply, then the employee is ineligible to take leave. The DOL’s response and modified rules provide added details and reasoning for the DOL’s position. The DOL notes that, for example, if an employee cannot work because the employer is closed, the worksite closure is not one of the six conditions. The explanation details why the DOL continues to impose a “but- for causation” standard for work availability requirements. They also revised the temporary rules to explicitly include a work availability requirement for all qualifying reasons for FFCRA leave.
Impact on Employers: Now that the DOL has essentially rejected the Court’s opinion, the qualifications for who receives FFCRA leave revert back to its original form. The employer must have work available for the employee at the time of the leave request. Ultimately, furloughed employees are once again ineligible for FFCRA leave.
Definition of a Healthcare Provider
Summary: To ensure resources remained available during the pandemic, the DOL granted sweeping power to deny FFCRA benefits to individuals deemed “healthcare professionals.” The broad definition, though, resulted in the possibility of anyone working for a health care provider, regardless of their actual role or duties, being denied leave.
Court Ruling: The Court took issue with the DOL’s rule because it did not take individual roles into account. For example, the DOL argued that a surgical center could deny leave to its employees, even if some of those employees – such as the receptionist– were not directly involved in critical patient care of healthcare activities.
DOL Response: The DOL’s temporary rule defines health care providers by referring to the existing FMLA definition, and also including employees who provide diagnostic, preventative, treatment, or other integrated services necessary for patient care. The DOL directly addresses the Court’s concern by noting that “it is not enough that that an employee works for an entity provides health care services,” but that the employee must be capable of providing diagnostic, preventative, or treatment services that “if not provided, would adversely impact patient care.”
The new rule details that employees who render services related to patient care, but not integrated to patient care, may not be exempt. They provide examples of employees who should not be considered health care professionals and should not be exempt. The list includes IT professionals, maintenance staff, HR, food service workers, records managers, billers, and consultants.
Impact on Employers: Healthcare employers should now defer to the DOL’s new definition of healthcare provider for FFCRA purposes and be careful not to exclude employees from FFCRA leave improperly.
Intermittent Leave Prior Approval Requirement
Summary: The DOL’s original final rules allowed employees to receive FFCRA paid benefits for intermittent leave with several conditions so long as the employee and employer agreed to the arrangement in advance.
Court Ruling: While the Court agreed with the distinction between remote employees and those reporting to a worksite, there was no reason as to why an employee should be required to have pre-approval from an employer before taking intermittent leave.
DOL Response: The DOL’s new temporary rules diverge from the Court’s findings and instead reaffirm their instruction that employees must gain prior employer approval to take intermittent leave. The DOL claims that their new amended rules address the Court’s concerns. The initial reaction of most legal minds, however, is that the DOL’s rationale is circular and weak. The DOL’s primary argument is that because the FFCRA bill as written does not explicitly address intermittent leave, it is up to the DOL to use its discretion to provide clarity and instruction. The DOL did add flexibility concerning hybrid school schedules. The new rule asserts that since the hybrid school schedule is set, it is therefore not intermittent leave and does not require employer consent.
Impact on Employers: Employers should again look to reach agreements and arrangements with employees looking to take intermittent leave. The DOL continues to encourage employers to demonstrate flexibility in granting intermittent leave requests. That being said, the DOL believes that, in many circumstances, the agreed-upon telework and schedule arrangements “may reduce or even eliminate an employee’s need for FFCRA leave by reorganizing work time to accommodate the employee’s needs.” The DOL has emphasized that employers cannot request certification of medical need for intermittent leave.
Ultimately, the DOL lifted the requirement for a pre-approved leave agreement regarding children participating in remote learning as part of a set hybrid school model. If the school is closed temporarily, outside of the predetermined schedule, due to a COVID-19 related concern, then the leave request may be considered intermittent and require approval.
Summary: Under the DOL’s original final rules, employees are required to provide documentation before taking FFCRA leave.
Court Ruling: The Court found that the advance-notice requirement was inconsistent with the Act as it was written and determined that the employees do not need to provide substantiating documentation in advance of FFCRA leave.
DOL Response: The DOL seems to have conceded and revised their rules to state that employees must provide documentation to support the need for leave as soon as practicable, rather than prior to the leave request being approved. It is a small change, but one that brings clarity as the requirements for notice and documentation now align.
Impact on Employers: Employers can no longer make advanced documentation a blanket prerequisite for FFCRA leave approval. The new DOL rules state that substantiating documentation must instead be provided as soon as practicable. The DOL has stated that they believe that, in most cases, as soon as practicable will mean the moment that the employee provides formal notice for leave. Employers can now, in the majority of cases, require documentation at the same time as the notice for leave when practicable.
For Paid Sick Leave this means following your reasonable notice procedure any time after the first day, or portion thereof, that the employee has taken for leave.
For Paid Family Leave claims the DOL is defining practicable as being when the employee can reasonably know that they will need to take leave. The new rule states that if the leave is foreseeable then that will generally mean providing notice before taking the leave.
This changes only the timing of the documentation requirement; it does not erase it. Employees will still be required to substantiate the leave as they would have before the ruling.
Aldrich is Here to Help
We anticipate a new lawsuit emerging as a response to the new rules. In the meantime, your Aldrich Benefits team is here to provide support to you however we can. For further information about implementing FFCRA leave, please contact your advisor. For more resources to help you navigate the developing impact of coronavirus on your business and employees, visit our COVID-19 Resource Center.
This article was written with the most current information as of September 15, 2020.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter.
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VP, Business Development
Aldrich Benefits LP
Evan Cole partners with his clients to advise and assist them with their employee benefit plans, specializing in group and association plans. Prior to joining Aldrich, Evan was a top producing employee benefits representative for one of the nation’s largest life, disability, and dental carriers. He holds licenses for life and health in the states... Read more Evan Cole
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