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Moving Forward to the “New Normal”: U.S. Department of Labor Clarifies Leave Entitlements Under the Families First Coronavirus Response Act

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| Legal Advisory

On September 11, 2020, the Department of Labor (“DOL”) promulgated revised regulations clarifying workers’ rights and employers’ responsibilities under the Families First Coronavirus Response Act’s (“FFCRA”) paid leave provisions, effective September 16, 2020. The DOL’s promulgation of the regulations follows the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the FFCRA regulations to be invalid.

Health Care Workers

The FFCRA regulations allow employers to exclude employees who are “health care providers” from eligibility for paid expanded family and medical leave (“EFML”) and emergency sick leave (“EPSL”). Under the original April 2020 FFCRA regulations, “health care provider” was defined by reference to the employer, such that the exclusion would apply to any employee of an employer that provided health care services. For example, any employee at a university offering health care instruction (such as professors, cafeteria workers, and janitorial employees) would be excluded from eligibility for taking FFCRA leave. This definition was found to be “vastly overbroad” by the Southern District court, which explained that any definition must require a role-specific determination of which persons’ roles bear a nexus to the provision of health care services. 

The revised regulations significantly narrow the definition of “health care provider.” The revised regulations provide that, for the purpose of excluding employees from taking paid FFCRA leave, an employee is “capable of providing health care services,” and thus may be a “health care provider” under the law, only if he or she is:

  • a licensed doctor of medicine, nurse practitioner, or other health care provider authorized to issue a certification under FMLA regulations;
  • employed to provide diagnostic services, preventative services, or treatment services (such as nurses, nurse assistants, medical technicians, and those providing services under the direction or supervision of those employees); or
  • employed to provide services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care (such as lab technicians).

The DOL has provided a helpful list of the types of services covered under the definition (including clarification of the definitions of preventative, treatment, and integrated services) and the types of employees that are not considered health care providers under the law based on the revised definitions (including information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers).   

Available Work

In the original FFCRA regulations, paid EFML and EPSL could only be taken if work was available from which the employee could take leave. This requirement, however, only applied to three of the six qualifying reasons for leave. The revised regulations extend this requirement to all six qualifying reasons. In other words, paid FFCRA leave is not available to employees when their employers have no work available for them (for example, if they are on furlough), even if the employee has a FFCRA-qualifying reason for leave.

Notice and Documentation Requirements

The DOL revised the regulations to clarify notice and documentation requirements for EFML.  Previously, the notice requirements for both EFML and EPSL were that the employee must provide notice in advance, and employers could only require such notice after the first workday (or portion thereof) for which an employee took EFML or EPSL. While this notice requirement remains unchanged for EPSL, the revised regulations provide that advanced notice of the need for EFML is required as soon as practicable; if the need for leave is foreseeable, that will “generally mean providing notice before taking leave.”

The revised FFCRA regulations also clarify that documentation supporting the need for leave under FFCRA may be provided “as soon as practicable,” generally at the time an employee gives notice. This is a change from the original requirement that documentation be provided prior to taking leave.

Intermittent Leave

Finally, the DOL reaffirmed its position that employer consent is required for taking intermittent leave under FFCRA (and only for childcare purposes if an employee is working on-site). The regulations clarify that FFCRA leave taken due to a child’s school’s “hybrid” schedule is not intermittent and does not need employer consent, and that if a parent elects to keep a child learning remotely when there is an option for in-person schooling, he or she is not eligible for FFCRA leave.

What’s Next?

We are continuing to monitor federal and state regulations, and can assist employers in developing best approaches to these workplace issues.

This advisory was prepared by Emily Grannon Fox and Liam O’Connell in Nutter’s Labor, Employment and Benefits practice group. If you would like additional information, please contact Emily, Liam, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.  

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