Up to the Minute Update: New Federal Department of Labor Regulations on the Families First Coronavirus Response Act Take Effect on September

For those of you who attended Skelton Taintor & Abbott’s discussion about accommodating parents in the workplace with the Lewiston/Auburn Chamber of Commerce last week, it may come as no surprise that the federal Department of Labor (DOL) has just issued new regulations that respond directly to a recent New York ruling invalidating several portions of DOL regulations about the Families First Coronavirus Response Act (FFCRA).  The DOL’s revised guidance takes effect on September 16, 2020.  Attorney Amy Dieterich will be tackling these new regulations, in addition to any other questions you have about accommodating parents in the workplace, with the Central Maine Human Resources Association (CMHRA) on September 15, 2020.  There is still time to register for this extremely timely topic!  In the meantime, here is what you need to know about the revised regulations.

On August 14, 2020, the U.S. District Court for the Southern District of New York issued a ruling invalidating several of the DOL’s regulations in four-key areas: (1) the rule’s provision denying worker’s benefits when their employers “do not have work” for them; (2) the DOL’s interpretation of the law’s exclusion for health care providers; (3) the rule’s limits on taking intermittent leave; and (4) its pre-leave documentation requirements.  Let’s take a closer look.

Prohibition on FFCRA leave if work is unavailable

In August, the New York court said that the DOL exceeded its authority by stating that employees are not eligible for leave if their workplace is closed or if work is otherwise unavailable.  Basically, the court said that even if the workplace if closed, an employee could still be entitled to leave benefits under the FFCRA.  The DOL disagreed and remains steadfast in its interpretation.

Your takeaway: An employee is not entitled to take any type of paid leave under the FFCRA where the employer does not have work for the employee.  According to the DOL, this is because the employee would be unable to work even if she or she was not in need of FFCRA leave benefits.  Here is the example the DOL gives: “[I]f a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.”

Broad definition of healthcare provider

The FFCRA grants employers the option of exempting certain healthcare workers and emergency responders from paid leave under the law.  The New York court said that the definition of healthcare provider was far too broad, exempting too many workers from receiving FFCRA benefits.  In response, the DOL revised the definition of “healthcare provider” and “emergency first responder.”

Your takeaway:  If you are currently utilizing the broad definitions of healthcare provider and emergency responder, it’s time to reassess.  The revised definition of healthcare worker includes a worker who is “capable of providing health care services,” which include “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” or otherwise meets the FMLA’s definition of the term.  The definition of “emergency responder” remains vague, but includes individuals who “(1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of our communities and of our Nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and wellbeing.”

Limits on intermittent leave

In August, the New York court ruled that the DOL regulations requiring an employer and employee to agree on whether an employee can take intermittent leave were “irrational,” because the regulation conflicted with other laws on intermittent leave, like the Family Medical Leave Act.  Nevertheless, the DOL doubled down on its regulation and requirement that, in order for employees to take intermittent leave, the employer and the employee must agree.

Your takeaway: The DOL regulations specifically state, “[a]bsent agreement, no leave under the FFCRA may be taken intermittently.”  While the regulations don’t mandate that the agreement be in writing, the rule does require a clear and mutual understanding between the employee and the employer that the employee may take paid leave in certain – agreed upon – increments of time.

Pre-leave documentation requirements

The New York court opined that pre-leave documentation should not be a prerequisite for an employee to receive leave under the FFCRA.  In response, the DOL’s revised regulations seek to clarify the documentation that is required by employees, and notes that “it will be reasonable for an employer to require notice as soon as practicable after the first workday is missed.”  Further, the regulation clarifies that it is reasonable for an employer to require the employee to comply with the employer’s usual notice procedures and requirements, absent unusual circumstances. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

Your takeaway: Read the rules carefully, and be mindful of works like “may” versus “must” or “shall,” as well as the words “and” and “or.”  Here’s the language straight from the regulation itself (with some emphasis added):

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. As provided in § 826.100, such documentation must include a signed statement containing the following information: (1) The employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

It will be reasonable for an employer to require notice as soon as practicable after the first workday is missed, and to require that employees provide oral notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA. The employer may not require the notice to include documentation beyond what is allowed by § 826.100.

An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave.

  • An employee requesting paid sick leave under § 826.20(a)(1)(i) must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. An employee requesting paid sick leave under § 826.20(a)(1)(ii) must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. 
  • An employee requesting paid sick leave under § 826.20(a)(1)(iv) to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. 
  • An employee requesting to take paid sick leave under § 826.20(a)(1)(v) or expanded family and medical leave to care for his or her child must provide the following information: (1) The name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave. 
  • For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.

Is your head spinning?  You’re not alone.  There is still time to register for CMHRA’s meeting on accommodation parents in the workplace presented by Amy Dieterich.  Of course, ST&A attorneys are always here to help guide you through the new workplace normal.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy DieterichJordan Payne Hay, and James  F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.