On Wednesday, September 16, 2020, the United States Department of Labor (USDOL) published revisions to its temporary regulations implementing the Families First Coronavirus Response Act (FFCRA). Those revisions limit the scope of the FFCRA's "health care provider" exemption, modify the requirement that employees provide documentation in support of their need for leave, and affirm those parts of the regulations that were called into question by an August 3, 2020, court decision from Judge Paul Oetken in the Southern District of New York. Those revisions, together with three new FAQs on the USDOL's web page, bring welcome clarity to employers in New York and elsewhere wondering about the practical effect of the recent court decision.

"Health Care Provider" Redefined to Focus on Employee's Duties

The FFCRA extends up to twelve weeks of paid leave to employees of employers with fewer than 500 employees but exempts healthcare providers from those benefits. As summarized in our prior blog post, the USDOL previously embraced an expansive definition of the term "health care provider" that looked at the business of the employer, rather than the duties of the employee, and allowed healthcare employers to exempt all employees from FFCRA benefits. The USDOL's updated regulations shift the focus to the actual job duties of the potentially exempted employee.

For the purpose of determining eligibility for benefits, only employees who provide services "integrated with and necessary to the provision of patient care" may be exempted from FFCRA coverage.

A healthcare establishment's IT professionals, building maintenance staff, human resources personnel, food service workers, records managers and billers are specifically excluded from the definition of a "health care provider" because, as explained in the commentary accompanying the revisions, they "provide services that affect, but are not integrated into, the provision of patient care."

Specifically included positions include medical doctors, nurse practitioners and other licensed healthcare professionals, as well as employees providing services under the direction of, or providing direct assistance to, such a professional. Also included in the definition are "employees who are otherwise integrated into and necessary to the provision of healthcare services, such as laboratory technicians who process test results necessary to diagnoses and treatment." The revised regulations further provide an illustrative list of healthcare services that, "if not provided, would adversely impact patient care, include[ing] bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples."

The revised regulations further specify that a "health care provider" may work at a variety of locations, including, for example, a doctor's office, clinic, laboratory, testing facility, or nursing home. However, "[a]n [e]mployee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an [e]mployee is a health care provider."

In light of this guidance, employers providing healthcare services should assess the nature of a requesting employee's job to determine whether that employee may properly be exempted from the FFCRA's coverage.

Timing of Employee Documentation Relaxed

The FFCRA has limited documentation requirements, as explained in our prior client alert. The updated FFCRA regulations do not impact the supporting documentation that can and must be collected in connection with a FFCRA leave. They do, however, provide more leeway regarding when that documentation must be provided. As of September 16, 2020, employees must provide FFCRA leave documentation "as soon as practicable" after the employee becomes aware of the need for leave.

Employers should continue to diligently collect leave paperwork in support of any FFCRA leave to ensure they have the information necessary to support the FFCRA tax credit. Employers should not, however, delay any FFCRA leave due to an employee's failure to provide paperwork in advance.

Intermittent Leave Consent Requirements Narrowed and Clarified

As summarized in our prior client alert, the USDOL conditioned intermittent leave for childcare considerations upon an agreement between the employer and the employee when the need for leave was occasioned by COVID-19-related school closure. Judge Oetken's August 3, 2020, order found that requirement to be "entirely unreasoned" and struck it from the regulations. In response, the USDOL provided commentary to the revised regulations that clarifies for employers how they are to address the competing priorities of workplace productivity, public health, and employee childcare. That commentary makes clear that, while intermittent leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) remains subject to agreement between the employer and the employee, an employee may take leave under the EFMLEA without the need to obtain employer consent if his or her child's school has adopted a phased reopening plan.

In its initial guidance concerning intermittent leave, the USDOL "encourage[d] employers and employees to collaborate to achieve flexibility and meet mutual needs" when exploring the possibility of intermittent leave under the FFCRA.The USDOL's reiteration of the rule that employers and employees must agree to an intermittent leave schedule is consistent with that guidance. In the commentary accompanying the September 16, 2020, revisions, the Department explained that one of the virtues of conditioning intermittent leave upon consent of both parties was that the "agreed-upon telework and scheduling arrangements may reduce or even eliminate an employee's need for FFCRA leave by reorganizing work time to accommodate the employee's needs related to COVID-19." In other words, the regulations encourage the parties to engage in a dialogue that could lead the parties to explore alternative work arrangements to allow both the employer's and the employee's respective needs to be met.

However, the commentary accompanying the revisions also made clear that "[t]he employer-approval condition would not apply to 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 the USDOL's reasoning, an employee whose child attended school on Tuesdays and Thursdays would be entitled to take leave under the EFMLEA on Monday, Wednesday and Friday – even in the absence of employer consent – because each day of closure "constitutes a separate reason for FFCRA leave that ends when the school opens the next day."

Employers should now follow a two-step process when responding to employees' notices of the need for leave under the EFMLEA: first, they must determine whether the request is for intermittent leave (as opposed to several discrete days of leave) under applicable guidance; and second, if it is such a request, they may engage in a dialogue with the employee to see if alternative work arrangements are feasible.

Work Availability Requirement Reinforced

The revised regulations also reiterate that in order for an employee to take leave under the FFCRA, the employer must actually have work available for the employee to do. This revision was in response to that part of Judge Oetken's opinion which held that an employer was under a duty to extend paid leave under the FFCRA, regardless of whether the employer had any need for the employee's services.

In his August 3, 2020, opinion, Judge Oetken found fault with the USDOL's rule that employees are eligible to take leave under the FFCRA only if the qualifying reason for that leave precluded the employee from doing work he or she was otherwise expected to do. He characterized the rule as "entirely unreasoned" and called the agency's explanation for that rule to be a "terse, circular regurgitation" of the rule itself. In response, the USDOL's commentary accompanying the revisions to the rule provides a detailed explanation of the reasoning underlying the rule, with multiple citations to Supreme Court precedent.

This rule has particular salience for employers in those localities responding to outbreaks of COVID-19 by imposing renewed shelter-in-place orders and making clear that businesses need not extend paid leave to employees in the event that they are forced to suspend operations due to considerations of public health.

Going Forward

Employers – especially those providing healthcare services – are encouraged to consult counsel to incorporate the USDOL's revisions into their existing policies and practices from now to the end of 2020, when the FFCRA is scheduled to expire. DWT attorneys are available to help confront the unique challenges of managing a workforce during COVID-19 in light of legislation and administrative action on the federal, state, and local levels.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.