DOL Updates Its Coronavirus Paid Leave Regulations

By Joshua R. Woodard, Jennifer R. Yee and Shalayne Pillar

In response to recent litigation, the U.S. Department of Labor (DOL), on September 16, 2020, revised its regulations interpreting the emergency paid leave available to employees under the Families First Coronavirus Response Act (FFCRA). The updated regulations address four major components of the FFCRA’s paid sick leave and expanded family and medical leave provisions for those facing issues caused by COVID-19 (the Revised Rule). See Revised Rule (Sept. 16, 2020).

New York’s Challenge to the DOL’s Previous Rule

The Revised Rule is not unprompted. As discussed in our prior legal alert, the DOL’s update stems from an August 3, 2020 district court decision finding certain portions of the DOL’s earlier regulations invalid. In that ruling, the U.S. District Court in the Southern District of New York found that the DOL exceeded its authority as it related to four portions of its previous rule, including: (1) a provision denying workers benefits when their employers “do . . . not have work” for them (the “work-availability” requirement); (2) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; (3) limitations on intermittent leave, which required employer consent; and (4) an employee’s documentation requirements prior to taking leave. See generally, New York v. U.S. Dep’t of Labor, CV No.1:20-cv-03020, 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

The Revised Rule

The Revised Rule addresses each provision deemed “invalid” by the Court in the New York case. But while the update modifies the DOL’s prior rule in some respects, the Revised Rule only offers additional justification for the DOL’s stance in other respects. 

1. The Work-Availability Requirement

The Revised Rule reaffirms the work-availability requirement, explaining that an employee may only take paid sick leave or expanded family and medical leave under the FFCRA to the extent that any qualifying reason is a but-for cause of his or her inability to work. Thus, if an employer has no work for the employee to perform, the employee is not entitled to paid sick leave or expanded family and medical leave under the FFCRA.

The DOL justified its position by, in part, relying on the legislative purpose behind FFCRA. According to the DOL, one of the principal purposes of FFCRA is to discourage employees who may be infected with COVID-19 from going to work. But, “[i]f there is no work to perform, there would be no need to discourage potentially infected employees from coming to work . . . [n]or is there a need to protect a potentially infected employee . . . from an employer’s disciplinary actions if the employer has no work for the employee to perform.”¹ The DOL also pointed out that emergency leave was not the only COVID-19 relief provided by Congress—specifically, the CARES Act created a refundable tax credit of up to $1,200 per eligible individual. “Against this backdrop,” the DOL affirmed its position that an employer must be able to provide work to qualify the employee for leave—even if the employer has closed or reduced its hours as a result of COVID-19.

2. The DOL’s Definition of “Health Care Provider”

The Revised Rule responds to the Court’s concerns and narrows the definition of “health care provider”—now, the term only covers those employees who are health care providers and other employees who are employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care. As a result, employees of health care entities who do not provide health services (such as IT provisions, human resources personnel and food-service workers) are able to take advantage of FFCRA leave benefits, if they are otherwise eligible.

3. Intermittent Leave

The Revised Rule also reaffirms that employer consent is necessary for intermittent leave. The DOL justified its position by explaining that the requirement balances the employee’s need for leave with the employer’s interest in avoiding disruptions to operations. Obtaining employer consent fosters a dialogue between the employer and employee, which may encourage greater flexibility in telework or scheduling arrangements that may reduce or even eliminate an employee’s need for FFCRA leave.

4. Documentation Requirements

Finally, the Revised Rule responds to the Court’s concerns and revises employees’ documentation requirements. Now, employees must submit leave documentation as soon as practicable, but not necessarily prior to taking leave, as the prior rule required. The DOL notes that in most cases, the requirement to submit documentation will be when the employee provides notice of the employee’s need for leave. However, when the need for expanded family and medical leave is foreseeable (for example, if an employee receives advance notice of a school closure), “as soon as practicable” likely falls prior to the start of leave.

Updated FAQs

In addition to publishing the Revised Rule on September 16, 2020, the DOL updated its FAQs to reflect its new guidance concerning the application of the FFCRA.

FFCRA as It Stands

It is unclear whether the Revised Rule will satisfy the concerns addressed in the District Court’s ruling, or whether the DOL will face additional legal challenges. It is also unclear whether the Revised Rule is retroactive, such that an employer must rectify any action it took under the previous regulations, which are now changed. For example, assume an employee had been out sick with COVID-19 in June 2020 and, because he/she was ineligible for FFCRA at the time, used regular paid time off (PTO). The DOL provides no guidance as to whether the employer in such a situation must now reinstate the PTO and provide retro FFCRA pay. 

Regardless, employers should consider the FFCRA’s requirements consistent with the Revised Rule and should consult counsel if they have any questions. In particular, health care employers who may have exempted some or all of their employees from paid leave under the FFCRA should seek legal advice to determine the new scope of coverage for their employees.