DOL Issues Revised Rule on FFCRA Leave in Response to Court Ruling

CAAs considering employee requests for paid sick leave and emergency family and medical leave (FMLA) under the Families First Coronavirus Response Act (FFCRA) should be aware of a revised rule announced by the U.S. Department of Labor (DOL) that will take effect on September 16, 2020. The revised rule is a response to an August 3, 2020, ruling from the U.S. District Court for the Southern District of New York (the court) that invalidated four parts of the DOL’s rule (See CAPLAW News Flash, Federal Court Strikes Down Certain FFCRA Rules).

The revised rule reaffirms, revises, and explains those parts of the rule that had been invalidated by the court as follows:

Work Availability Requirement

Under the revised rule, employees are eligible for paid sick leave and emergency FMLA only if their employers actually have work for them to perform. The court had invalidated this work availability requirement, but the DOL reaffirmed its interpretation of the FFCRA as requiring that any of the six qualifying reasons for taking leave must be a “but-for-cause” of the employee’s inability to work (e.g., “But for an employee being under a quarantine order, he could have worked this week.”). Thus, if an employer does not have work for an employee to perform, that employee cannot claim leave, because there is no “but-for” causal link between a qualifying reason for leave under the FFCRA and that employee’s inability to work. 

Employer Consent for Intermittent Leave

Under the revised rule, employees must obtain employer consent to take leave intermittently (i.e., leave taken in separate blocks of time for a single qualifying reason). Intermittent leave is permitted under the FFCRA only in the following circumstances: if teleworking (for any qualifying reason) or, if working on-site, only if taking leave to care for a child whose school or place of care was closed due to COVID-19-related precautions. The DOL clarified, however, that no employer approval would be needed when an employee takes leave in full-day increments to care for a child whose school is closed on certain days due to COVID-19. The DOL clarified that this type of hybrid school situation is not “intermittent leave” because each day of school closure constitutes a separate qualifying reason for leave. It distinguished this situation from one in which a school is closed for a longer period of time and an employee seeks leave intermittently within that period of time, which would require employer consent.

Documentation Requirements

Under the revised rule, an employee does not need to provide documentation of the need for leave prior to taking paid sick leave or emergency FMLA under the FFCRA. Instead, documentation may be given “as soon as practicable,” which would usually occur when an employee provides an employer with notice of the need for leave. The DOL revised this requirement in response to the court’s ruling that an employer could not precondition leave under the FFCRA on an employee providing documentation supporting the need and length of leave.

Health Care Provider

The DOL revised the definition of a “health care provider” who may be excluded from eligibility for FFCRA leave, as the original definition had been ruled overly broad by the court. The revised rule now includes those who would be considered a “health care provider” under Family and Medical Leave Act regulations, or those employees who are themselves able and employed “to provide diagnostic, preventative, or treatment services or services that are integrated with and necessary to” those services, without which patient care would be adversely impacted.

The DOL’s revised rule will become effective upon its publication in the Federal Register on September 16, 2020. The other regulations promulgated in the DOL’s original rule on paid leave under the FFCRA remain in force. CAPLAW will continue to monitor legal developments in the FFCRA leave requirements and issue additional updates as necessary.

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number  90ET0467-03-02. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.