by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
September 14, 2020
Those fun folks at the U.S. Department of Labor just LOVE releasing important information on a Friday! I think it displays a cruel sense of humor – they get to relax and enjoy the waning days of summer over the weekend, while the rest of us in the absence management industry get to parse though the new 53-page proposed temporary regulations released by the DOL on September 11.
And on top of that, comments for proposed revisions to the FMLA regulations are due Tuesday September 15. Sure we could have gotten those done earlier if we had known . . . but there have been a few other things going. Can you say “paid family and medical leave”? The ADA and COVID? State COVID laws? California with about a billion pending leave of absence bills approaching governor’s signature deadline? We either have or will report on each of these . . . just watch this space! While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at ping@matrixcos.com, and our colleagues will make it so!
- The availability of FFCRA benefits only if the employer has current work for the employee
- The regulations’ broad definition of “health care provider” for the purposes of FFCRA coverage exemption
- Requiring employer consent to intermittent leave
- Requiring documentation prior to taking FFCRA leave
You can read about it in detail on our blog here. The DOL has now come out with revised regulations that will be effective September 16, 2020, barring any further action.
Here’s the gist of the issues and the DOL’s response. Most of this comes from the DOL’s preamble – explanatory material that precedes the actual revised regulations. Let me tell you, it is fascinating reading:
- Are FFCRA benefits available to employees only if the employer has current work for the employee?
The court: The New York court ruled that the DOL overreached when it took the position that FFCRA benefits were available only if the employer has current work for the employee. The court stated that the DOL had not given sufficient justification for this interpretation and held that if an employee is unable to work due to one of the FFCRA qualifying reasons, that employee is entitled to FFCRA benefits even if the employee is also unable to work because there is no work to be had.
The DOL’s response, short answer: New York court, go fly a kite. We stand our ground and continue to guide that an employee is not entitled to FFCRA leave if the employer has no current work for the employee.
The details: In the new proposed temporary FFCRA regulations (yes, all those adjectives apply!) the DOL has struck back, defending and maintaining its original position but with greater detail. As explained by the DOL, the FFCRA’s provisions that an employer must provide FFCRA leave to an employee if the employee is unable to work “because” of or “due to” a qualifying reason for leave under FFCRA establishes a “but-for” causation requirement – the employee would not be able to work but for one of the 6 reasons for leave provided in the statute. The DOL argues that its continued application of the work-availability requirement is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when he or she would otherwise have been working.
The DOL actually provides even more justification for the work-availability rule in the preamble to the new regulations, so read away with your cocktail in hand if you like that kind of stuff (I do!).
And on a side note, the New York court had criticized the DOL for applying the “work-availability” rule only to 3 of the 6 FFCRA leave reasons. The DOL agrees that there is no reason for differentiation and now takes the position that indeed, the rule applies to all 6 leave reasons.
Matrix guidance: This one’s easy. No need to provide FFCRA leave and benefits to an employee not currently working whether due to a COVID furlough, a pre-planned vacation or sabbatical, or other reasons not caused by one of the 6 leave reasons specified in the FFCRA. But, remember the anti-retaliation provisions of FFCRA: Employers may not make work “unavailable” in an effort to avoid FFCRA obligations. Altering an employee’s schedule in an adverse manner because that employee requests or takes FFCRA leave may be impermissible retaliation.
- Was the temporary regulations’ initial definition of “health care provider” too broad for the purposes of FFCRA coverage exemption?
The court: FFCRA allows employers of health care providers to exempt such employees from FFCRA entitlements. The DOL supplied an expansive definition of “health care provider” for this purpose. The court struck the DOL’s definition because it focused on the employer’s business rather than the employee’s role and allowed employers to exempt anyone “employed at” a doctor’s office, hospital, medical school, or a number of other facilities “where medical services are provided,” as well as such facilities’ contractors.
The DOL’s response, short answer: The DOL acceded to this part of the ruling and has revised its definition of “health care provider” for purposes of the exemption to focus on the skills, role, duties, or capabilities of the employee rather than the identity of the employer.
The details: In 29 C.F.R. § 826.30(c)(1) the DOL has adopted a revised definition of “health care provider” for purposes of the employer’s optional exclusion of employees who are health care providers from FFCRA leave. As explained in the new regulations’ preamble, the revised regulations now define a “health care provider” to include physicians and others who make medical diagnoses. The revised regulations also identify “additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers. . . . [An employee is a health care provider if he or she is ‘capable of providing health care services.’ The definition then further limits the universe of relevant ‘health care services’ that the employee must be capable of providing to qualify as a ‘health care provider’—i.e., the duties or role of the employee. Specifically, a health care provider must be ‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.’”
Matrix guidance: This really seems reasonable. The DOL’s original definition would have allowed employers to exempt persons that had nothing to do with the actual application of health care services. Going forward, employer of any type of health care provider should use discretion in applying the FFCRA exemption only to those who fit the new DOL definition. Although technically the new regulation is only applicable as of September 16, overbroad application of the exemption after the New York court’s ruling is risky, so we recommend following the new DOL rule immediately. And remember, you can always be more generous and provide FFCRA benefits to employees you might technically be able to exempt.
- Is employer consent to intermittent leave required?
The court: Although there may be a legitimate need to limit an employee’s access to the workplace if the employee poses an infection risk, such as when the employee is quarantined; exhibits symptoms and is seeking a diagnosis; or is caring for a quarantined family member, there is no such risk for leave necessitated by an employee’s child’s school closure or unavailability of day care or if the employee is working remotely. As a result, the court held there is no justification for allowing this type of intermittent leave, or intermittent leave from at-home work, only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave, although it is only available for leave due to the employee’s or family member’s serious health condition when medically necessary).
The DOL’s response, short answer: The DOL is again standing its ground on this one. Employer consent is required for intermittent leave for FFCRA reasons that don’t pose a risk of spreading infection if the employee returns to work and for intermittent telework. But with creative logic, employer consent is NOT required when occasional leave is needed due to a school’s hybrid return to school schedule, with some days of remote learning and alternate days of in-person attendance.
The details: Under the regular FMLA, intermittent leave is available without employer consent only when medically necessary for leave due to the employee’s or family member’s serious health condition and for leave due to qualifying military exigencies (which by their nature are likely to occur sporadically). Long-standing FMLA regulations balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave. See 29 C.F.R. § 825.120(b), 121(b).
The DOL explains that the reasons for allowing intermittent leave without employer consent in the above two situations (medical necessity and military exigency) are not applicable to taking leave intermittently under the FFCRA for the only non-medical reason: school or day care closure. Long-standing FMLA regulations balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave. See 29 C.F.R. § 825.120(b), 121(b). The same should apply to intermittent leave under FFCRA for school closures.
Further, since employer permission is a precondition under the FFCRA for telework, the DOL maintains it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.
What about school closures? In good news for employers, however, the DOL takes the position that employer approval is not required for employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50. In such cases the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week. This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.
Matrix guidance: Although based on further defined reasoning, this supports the interpretation of the issue we offered in a previous blog post that employer consent is not needed when the school itself is only open intermittently. However, hybrid school schedules will almost certainly be regular and predictable, and announced well in advance. Under the FFCRA, employers can require employees to provide as much advance notice as is practicable of leave needed for school closures.
- Can an employer require documentation prior to an employee taking FFCRA leave?
The court: The original FFCRA regulations stated that documentation to support an FFCRA leave must be submitted to the employer “prior to taking” the leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave.
The DOL’s response, short answer: The temporary regulations have been revised to comply with the court’s ruling.
The details: 29 C.F.R. § 826.90(a) now provides that an employee must provide notice of leave for FFCRA paid sick leave as soon as is practicable after the first day of absence, and as soon as practicable for leave under the expanded FMLA for school closures. At a minimum this will include the employee’s name; the date(s) for which leave is requested; the qualifying reason for the leave; and an oral or written statement that the employee is unable to work because of the qualified reason for leave. The employer may also require the employee to furnish the additional information set forth in 29 C.F.R. § 826.100(b)-(f) at the same time (generally, more details needed to support the tax credit).
Matrix guidance: Obviously, employers will want to follow the new regulations regarding employee notice. However, this portion of the new regulations still leaves some unanswered questions which we posed here when the New York court first issued its decision. In order to get the federal tax credit for benefits paid under the FFCRA, the employer MUST get detailed documentation from the employee. So: If the employee takes leave and never provides the required documentation, can the employer go back and deny the leave retroactively? If so, how would the employer recoup wages paid? (Beware of state and federal laws regarding withholding from employee paychecks!) Or, how would the employer qualify for the tax credit?
In conclusion . . . Hello . . . Are you still with me?
In addition to the new temporary regs, the DOL issued 3 new FFCRA Q&As addressing the effect and scope of the New York court’s ruling and answering one of the questions about the scope of the court’s ruling – was it applicable only to the parties to the case, only in the Southern District of New York, or throughout the whole country? In Questions 101 and 102, the DOL explains that the effect of the court’s ruling is nationwide and the new regulations are applicable nationwide. So there. The revised regs are, of course, open to another lawsuit challenging them but we find that unlikely. The DOL’s explanations in the preamble thoroughly address the four provisions stricken by the New York federal court and either adopt the court’s findings in new regs or exhaustively and better explain its reasons for keeping two of the challenged provisions. Also, remember that the FFCRA is set to expire on December 31, 2020, leaving little time in which to mount a court challenge and get a ruling. Unless FFCRA is extended . . .