We previously blogged about a decision of the U.S. District Court for the Southern District of New York (SDNY) that invalidated portions of the U.S. Department of Labor’s (USDOL) final rule (Original Final Rule) relating to paid coronavirus leave under the Families First Coronavirus Response Act (FFCRA). To recap, that ruling: (1) invalidated USDOL’s rule that paid leave is only available if an employer has work for an employee to take leave from, because USDOL failed to provide a sufficient reason for imposing such a requirement; (2) struck down USDOL’s definition of “health care providers” who can be exempted from the FFCRA’s paid leave protections, because that definition was too broad; (3) eliminated USDOL’s mandate that an employee is only entitled to intermittent use of paid leave his or her employer agrees to allow it, because USDOL failed to provide an adequate reason for it; and (4) struck down USDOL’s requirement that an employee must submit documentation supporting his or her request to take leave before leave starts, because the FFCRA allows documentation to be provided at a later date in some situations.

Yesterday, USDOL issued a new rule (New Rule) which changes the Original Final Rule in some respects, and otherwise attempts to reinstate some of the previous requirements in ways that comport with SDNY’s decision. The New Rule, which is scheduled to take effect on September 16, 2020 (unless of course someone seeks and obtains a stay from a court), is summarized below.

The Work Availability Requirement 

The FFCRA provides for paid leave only where an employee is “unable to work (or telework) for a qualifying reason.” However, the Original Final Rule provided that an employer does not have to provide paid leave to an employee who cannot work (or work remotely) if the employer “does not have work” for the employee to do in the first instance (the Work Availability Requirement).

The Original Final Rule gave the following example: if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, a cashier of the business who is subject to a stay-at-home order may not take paid sick leave. That is because the lack of work is due to the downturn in business, not the cashier’s inability to leave home.

SDNY struck down the Work Availability Requirement, finding that it limits the availability of paid leave under the FFCRA in an “enormously consequential way” without a sufficient reason for such a “monumental policy decision.”

The New Rule reinstates the Work Availability Requirement but attempts to address SDNY’s concerns by explaining USDOL’s reasoning in more detail. It states that the employee’s qualifying reason for leave must be the “but for” cause of the employee’s inability to work. If an employee has a qualifying reason for leave, but also would not be able to work even in the absence of that reason because there is no work for him or her to do, the employee is not entitled to paid leave.

USDOL provides the following reasons for the Work Availability Requirement. First, USDOL states that this requirement is consistent with the FFCRA, because the law says that an employee is entitled to leave if he or she is unable to work “because” of a qualifying reason. If an employee is unable to work “because” the employer does not have work for him or her to do, then, according to USDOL, the requirements of the law are not met.

Second, USDOL states that the very concept of “leave” means that an employee would have been working if not for his or her qualifying need to be absent. In interpreting the phrase “leave” in other contexts, such as under the Family Medical Leave Act of 1993 (FMLA), USDOL has adopted a similar interpretation that “if an employee is not expected or required to work, he or she is not taking leave.”

Third, USDOL states that the purpose of the FFCRA is to discourage employees who are or may be infected with COVID-19 from coming into the workplace. That purpose would not be served by extending leave to employees who would not otherwise be going to work because there is no work for them to do.

Finally, USDOL reasons that extending leave to employees who do not have work would lead to illogical results. If employees do not have work to do, it is likely that they will be furloughed and will not receive pay from their employer. If a group of employees is furloughed, but one of them comes to have a qualifying reason for FFCRA leave, that employee would then be paid despite the furlough while other furloughed employees would remain unpaid.

This rationale notwithstanding, USDOL cautions that it would be illegal for an employer to manipulate the availability of work in order to avoid granting FFCRA leave to an employee. That sort of conduct would run afoul of laws that prohibit employers from retaliating against employees who request or take job-protected leave.

Health Care Provider Exemption

The FFCRA allows employers to exclude “health care providers” from eligibility for leave benefits. USDOL’s Original Final Rule defined the term “health care provider” in an extremely broad way. SDNY struck down that definition because of its overbreadth, noting that it hinges on the nature of the services the employer provides rather than the duties performed by the employee. For example, the court noted that, under the Original Final Rule, an English professor would be considered a health care provider if he or she worked for a University with a medical school.

In the New Rule, USDOL acknowledges that the purpose of the FFCRA’s permissive exemption of “health care providers” is “to prevent disruptions to the health care system’s capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs that may result from health care providers and emergency responders being absent from work.” Therefore, the New Rule adopts the FMLA definition of “health care provider” and expands upon that definition by including any other employee “who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The New Rule provides further parameters for determining which jobs are included, and which are excluded, from the latter portion of the “health care provider” definition.

Intermittent Leave

The FFCRA is silent as to an employee’s ability to take paid leave intermittently. The Original Final Rule attempted to fill this gap by providing that the intermittent use of leave is permissible, but only if the employer agrees to allow it and the employee is taking leave for a reason that involves “a minimal risk that the employee will spread COVID-19 to other employees.” For example, there is a minimal risk that an employee will spread COVID-19 where he or she takes leave to care for a child because school is closed or a childcare provider is unavailable. There is also a minimal risk of transmission where an employee takes leave for any qualifying reason, including one involving exposure to COVID-19, if the employee is working remotely.

SDNY upheld USDOL’s prohibition on the use of intermittent leave where an employee is at risk of spreading COVID-19 to other employees, i.e., where an employee reports to the workplace and seeks leave for any reason involving a potential exposure to COVID-19. However, the court held that, where intermittent leave is available, USDOL failed to provide a sufficient reason for prohibiting the use of intermittent leave if the employer does not agree to it.

The New Rule attempts to reinstate the requirement that intermittent leave can only be taken if an employer agrees to allow it, and to supplement USDOL’s explanation of the reasons for this requirement. Specifically, USDOL notes that, except in specific circumstances, employer approval is required for intermittent leave under the FMLA. According to USDOL, the reason for this requirement in the FMLA context — a recognition of the need to avoid “unduly disrupting the employer’s operations” — is equally applicable to leave under the FFCRA.

USDOL further points out that requiring employer agreement may foster discussions about an employee’s ability to telework, which could ultimately reduce or eliminate the employee’s need for FFCRA leave in the first place.

The New Rule carves out an important exception to the employer agreement requirement. USDOL does not consider an employee’s need for leave to care for a child who is learning remotely on a hybrid schedule to be “intermittent.” Instead, USDOL considers each period of remote learning to be a separate FFCRA qualifying event, regardless of whether the child is learning remotely on alternating days, on half days, or on alternating weeks. In this situation, the employee does not need employer permission to take FFCRA leave only on his or her child’s remote learning days. USDOL does caution, however, that if an employee is seeking to take leave for any period of time in which in-person learning is available to his or her child (i.e., the school is not closed to that child), such a request is considered one for intermittent leave and employer permission is required.

Documentation Requirements

The Original Final Rule required employees to submit certain documentation to their employers before taking leave under FFCRA. However, the law itself said something different. In the case of emergency family leave (i.e., leave to care for a child whose school or place of care is unavailable due to COVID-19), where the need for leave is foreseeable, the law states that the employee must provide the employer “with such notice of leave as is practicable.” In the case of emergency sick leave, on the other hand, the law states that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

Because of the conflict between the FFCRA and the Original Final Rule, SDNY held that the documentation requirement is invalid to the extent it requires documentation to be submitted before leave is taken.

Under the New Rule, documentation need not be given by the employee “prior to” taking emergency sick leave or family leave, but rather may be given “as soon as practicable.” USDOL notes that, in most cases, this will be when the employee provides notice to the employer. Additionally, the New Rule explains that, where the need for emergency family leave is foreseeable, notice of the need for leave generally must be provided before leave is taken. If the need for family leave was not foreseeable, the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

Conclusion

USDOL has effectively reinstated the Work Availability Requirement and the requirement of employer permission for intermittent leave, with the carve-out described above regarding hybrid learning schedules. As to these matters, the purpose of the New Rule and its preamble is largely to beef up USDOL’s reasoning for these requirements, which SDNY previously found insufficient. There may be future legal challenges to USDOL’s stated reasons for these parts of the New Rule, and it remains to be seen whether they will withstand review by a court.

The New Rule also significantly alters USDOL’s previous definition of “health care providers” for whom employers can choose not to extend paid leave under the FFCRA. It further makes clear that employers can only require employees to submit documentation supporting their request for leave “as soon as practicable.” Whether this requires submission of documentation before or after the employee begins taking leave depends on the circumstances.

If you have any questions, please contact Jessica M. Baquet, the Chair of our Labor and Employment Practice Group, at (516) 393-8292 or jbaquet@jaspanllp.com.