On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued its initial temporary rule implementing the paid sick leave and expanded family and medical leave provisions under the Families First Coronavirus Response Act (FFCRA). Shortly thereafter, the state of New York challenged various aspects of the rule. In a decision issued on August 3, 2020, a federal judge agreed, in part, with the state, finding certain portions of the rule to be invalid. New York v. United States Department of Labor et al., No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020). In response, the WHD announced on September 11, 2020, revisions to its rule. Those revisions will take effect on September 16, 2020.
To provide some context, the District Court in New York v. U.S. Department of Labor ruled that four parts of the FFCRA temporary rule were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the limitation that employees may take FFCRA leave intermittently only with their employer’s approval; (3) the broad definition of a “health care provider” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
Notwithstanding the District Court’s holding, the WHD chose to reaffirm its position that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. Employees who are not working for other reasons (e.g., a layoff or business closure due to the COVID-19 pandemic or other reasons) are not eligible for leave. In addition, the WHD reaffirmed the limitation that where intermittent FFCRA leave is permitted by the rule, employees must obtain their employer’s approval to take leave intermittently. The WHD specified, however, that the employer-approval condition would not apply to employees who take FFCRA leave to care for their children whose schools are operating on a hybrid-attendance basis because each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day and thus is not intermittent leave.
Notably, the WHD did make two changes to its rule. First and most significantly, the WHD revised the definition of “health care provider.” This change will allow many employees who previously could have been excluded by their employer from taking FFCRA leave to now take leave. Under the WHD’s initial rule, all employees working for a wide-range of businesses that provided goods or services related to health care could be denied leave. Under the revised rule, only an employee who is a “health care provider” under the Family and Medical Leave Act (FMLA) or “[a]ny 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” can be excluded from taking leave. Examples of employees who fall under the new definition include only: (1) nurses, nurse assistants, medical technicians and any other persons who directly provide the services described above; (2) employees providing such services under the supervision, order or direction of, or providing direct assistance to, FMLA health care providers or the employees described in item (1); and (3) employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary for diagnoses and treatment. The revised rule goes on to state that “[e]mployees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.”
The revised rule also provides a non-exhaustive list of the types of work locations where health care providers may perform services: “a doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided.” Lastly, the rule defines what is included in diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care.
The other change the WHD made to its FFCRA rule is to clarify when information supporting a sick leave or expanded family and medical leave request can be provided. Under the original rule, an employer could require that the information be provided “prior to” when the leave began. Under the revised rule, an employee (or someone on the employee’s behalf) is required only to provide information in support of a leave request “as soon as practicable,” which may be after the need for leave arises. Where the need for expanded family and medical leave is foreseeable, notice should generally be provided before the leave begins.
Under the FFCRA, emergency paid sick leave and expanded family and medical leave is available through December 31, 2020. With many schools recently having resumed remotely (in whole or in part), the narrowed definition of which employees can be excluded from taking leave means that many more employees potentially now will be allowed to take leave. Health care employers who previously excluded all of their employees or any non-patient-care employees from taking leave will need to revisit those situations and if appropriate, grant leave going forward from September 16, 2020.
If you have questions about the changes to the FFCRA rule or about the FFCRA in general, please contact any member of Warner’s Labor and Employment Practice Group.