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COVID-19 Clients Update - FFCRA Regulations Update

Below is a client alert regarding an August 3 federal court ruling which held that several features of the U.S. Department of Labor (DOL)'s regulations implementing the paid-leave provisions of the Families First Coronavirus Response Act (FFCRA) exceeded the agency's authority under federal law, and our analysis of the practical implications to employers in California.

Background Information

In a recently decided case of State of New York v. U.S. Department of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020), a federal judge has ruled that several features of the U.S. Department of Labor (DOL)'s regulations implementing the paid-leave provisions of the Families First Coronavirus Response Act (FFCRA) exceeded the agency's authority under federal law. The rule was adopted in April to implement the Families First Coronavirus Response Act, which provided eligible employees up to two weeks of paid sick leave and 10 weeks of paid emergency family leave. The decision applies to employers nationally, including California employers.

The Court's Ruling

Among the struck-down DOL regulations are: the work-availability requirement; its definition of "health care provider" for the purposes of excluding certain healthcare sector employees from emergency leave benefits; its requirement that an employee secure employer consent for intermittent FFCRA leave; and its requirement that documentation be provided by an employee before taking FFCRA leave. In its decision, the court stated that the DOL "jumped the rail" when developing the Final Rules in the present moment in time which calls for "flexibility and ingenuity."

I) The Work-Availability Requirement

The EPSLA grants paid leave to employees who are “unable to work (or telework) due to a need for leave because” of any of six COVID-19-related criteria. FFCRA § 5102(a). The EFMLEA similarly applies to employees “unable to work (or telework) due to a need for leave to care for . . . [a child] due to a public health emergency.” FFCRA § 101(a)(2)(A). The Final Rule implementing each of these provisions, however, excludes from these benefits employees whose employers “do[] not have work” for them. See Final Rule at 19,349–50 (§§ 826.20(a)(2), (6), (9), (b)(1)).

The court found that this limitation is hugely consequential for the employees and employers covered by the FFCRA, because the COVID-19 crisis has occasioned the temporary shutdown and slowdown of countless businesses nationwide, causing in turn a decrease in work immediately available for employees who otherwise remain formally employed. The court determined that FFCRA benefits are available even when work isn't, contrary to the DOL Final Rule's work-availability requirement, which requires that work be available with the employer in order for benefits to also be available. This ruling is significant because it means FFCRA benefits may be available during furloughs.

II) Definition of “Health Care Provider”

The court found that the DOL Final Rule’s definition of "health care provider" which may be excluded from the FFCRA's coverage is vastly overbroad, in that it includes employees "whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality."

By way of a reminder, the DOL has previously defined "health care provider" to include anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions, as well as any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

III) Intermittent Leave

Under the DOL's Final Rule, it permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree,” and, even then, only for a subset of the qualifying conditions. See Final Rule at 19,353 (§§ 826.50(a)-(c)).

Here, the court said the employer-permission requirement for conditions unrelated to those that correlate with a higher risk of viral infection for which intermittent leave is allowed was "unreasoned." Therefore, the following remain the conditions in which employees cannot take intermittent leave:

  • Subject to a government quarantine or isolation order related to COVID-19.

  • Advised by a health care provider to self-quarantine due to concerns related to COVID-19.

  • Experiencing symptoms of COVID-19 and taking leave to obtain a medical diagnosis.

  • Taking care of an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

  • Experiencing any other substantially similar condition specified by the secretary of health and human services.

However, under this ruling, employees will likely have the right to take intermittent leave in situations where health and safety is not at risk, such as when a child's school is closed or child care unavailable because of COVID-19 without the need for employer permission.

IV) Documentation Requirements

The DOL's Final Rule requires that employees submit to their employer, “prior to taking [FFCRA] leave,” documentation indicating, inter alia, their reason for leave, the duration of the requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave. See Final Rule at 19,355 (§ 826.100).

But the FFCRA already has a scheme to govern prior notice that does not require the employee to tell the employer why or how long he or she will need leave. Under the EFMLEA emergency paid-family-leave provisions, "in any case where the necessity for [leave] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable."

Regarding paid sick leave, the EPSLA states, "After 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."

The court stated, "To the extent that the final rule's documentation requirement imposes a different and more stringent condition to leave, it is inconsistent with the statute's unambiguous notice provisions."

Practical Pointers

The DOL Final Rules, except the four areas discussed above regarding the timing of documentation, consent for intermittent leave, work-availability requirement and definition of health care provider, remain in place.

As an appeal or additional rulemaking is likely, employers should consult with their legal counsel to determine its compliance with the DOL's regulations in a manner consistent with the court's decision.

Clients of Boucher Law are welcome to consult with one of our team members to seek advice and recommendations on employee requests related to FFCRA by calling our offices at (510) 838-1000 (Northern California) or (626) 838-1000 (Southern California).

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