Woman behind laptop researching FFCRA

When the U.S. District Court for the Southern District of New York invalidated several provisions of the Department of Labor’s (“DOL’s”) FFCRA regulations last month, many employers were left wondering whether to change their policies in response to the decision.  Meanwhile, the legal community debated the geographical scope of the ruling’s impact and wondered how long it would take the DOL to respond, and whether it would react to the decision by modifying its regulations.  The wait is over, and the DOL has issued revised regulations effective on September 16, 2020.

Read on for a discussion of the implicated provisions and how the DOL responded (and fought back) in its revised regulations:

DOL Reaffirms That “Available Work” Is a FFCRA Requirement

The District Court’s decision to invalidate the work availability requirement perplexed many employers because it potentially made furloughed employees eligible for FFCRA benefits, including paid emergency leave under the Family and Medical Leave Act (FMLA).  If you’re wondering what the work availability requirement is, take a minute to read our earlier blog post analyzing the court opinion. Typically, if an employee has been furloughed or laid off, they would not be eligible for FMLA or FFCRA coverage because no work is available at the time of the requested leave.  In its revised regulations, the DOL pushed back on the District Court’s rationale for eliminating this requirement.  It reaffirmed that the reason for taking leave must be the employee’s inability to work for a qualifying reason, and emphasized that where no work is available to the employee (e.g., due to furlough or a business closure), the COVID-19 related circumstance is not the direct or “but-for” cause of the employee’s absence.  In other words, an employee cannot take FFCRA paid leave if the employer does not have work for the employee to perform.

The DOL further argued that the term “leave” in the FFCRA is best understood to require that an employee be absent from work at a time when they would otherwise have been working.  If an employee has been furloughed, that means there is no work available.  The DOL also stated that removing the work availability requirement would lead to unfair results where furloughed employees with qualifying reasons for leave could take paid leave even when there is no work, but a furloughed co-worker with no qualifying reason for taking FFCRA would not be entitled to pay during the furlough.  The DOL also confirmed that the work availability requirement applies to all qualifying reasons an employee would take emergency paid sick leave and emergency family and medical leave under the FFCRA.

DOL Reaffirms Employer Approval Is Required for Intermittent FFCRA Leave

The DOL also reaffirmed the requirement that an employer’s approval is needed to take intermittent FFCRA leave.  In coming to this conclusion, DOL relied on longstanding FMLA principles governing intermittent leave.  Those principles hold that intermittent leave should, “where foreseeable, avoid unduly disrupting the employer’s operations”.  In the DOL’s view, this general principle carries through to FFCRA covered leaves and would also require employer approval.  The DOL explained that the FMLA balances the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring the employer’s agreement before an employee takes intermittent leave.

It is important to remember that, under the DOL regulations, intermittent FFCRA leave is permitted only if an employee is taking leave to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19. If the employee is taking FFCRA leave for any other qualifying reason, it cannot be used intermittently regardless of employer consent. So while the revised regulations make clear that employer consent is required for intermittent “school closure” leave under the FFCRA, the DOL threw a curveball into the regulations’ preamble. The preamble discusses administration of FFCRA leave when an employee’s child participates in partially remote or “hybrid” learning in which students have alternating in-person and remote learning schedules. Under these circumstances, the DOL deems each day of school closure “a separate reason for FFCRA leave that ends when the school opens the next day.”  Therefore, according to the DOL, intermittent leave is not necessary on these occasions because the “school literally closes . . . and opens repeatedly.” The DOL distinguishes alternating instruction schedules from the scenario where the school is closed for a period of time and the employee seeks to take leave for only for certain portions of that period for reasons other than the school’s in-person instruction schedule. The employee who seeks leave only some of the time his or her child is learning remotely due to a closure must obtain employer consent for intermittent leave usage.

Revisions to the Definition of “Health Care Provider” Under FFCRA

In its August ruling, the District Court held that the definition of “health care provider” was too broad and allowed employers to exclude too many workers from FFCRA protection.  In response to that argument, the DOL has adopted a narrower definition of “health care provider.”  The revision specifically limits the universe of relevant “health care providers” who can be denied FFCRA leave to those employees who either meet the definition of that term under the existing FMLA regulations or are employed to provide “diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care.”  Employees who do not provide such health care services are not health care providers.  For example,  IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers would not fall into this definition because the services they provide are too removed to be necessary components of patient care.

In addition, while recognizing that health care services may be provided at a variety of locations, the DOL emphasized that simply working at one of these locations does not necessarily mean an employee is a health care provider.  Conversely, an employee who provides health care services does not have to work at one of these locations to be considered a health care provider.

Revisions to Notice and Documentation Timing Requirements

Employers are permitted to require employees to follow reasonable notice procedures to receive paid FFCRA leave.  In response to the District Court’s decision admonishing the DOL’s requirement that employees provide documentation prior to taking FFCRA leave, the DOL clarified that any documentation required by an employer to support a request for leave need not be given prior to taking emergency paid sick leave or emergency family and medical leave but can be provided “as soon as practicable,” which would most likely be when the employee provides notice or makes a request for FFCRA leave.

What Employers Should Do Next

Though the DOL response is welcomed by employers who wanted clarity, it is not clear if the DOL’s revised regulations will be challenged, or in what venue(s) that might occur.  Employers should review the new regulations with their counsel and determine what steps to take regarding the administration of company policies and FFCRA leave requests going forward. Employers should also review the DOL’s updates and additions to its Q&As in connection with the new guidance.

Additional COVID-19 Resources

Employers should continue to monitor the DOL’s COVID-19 related guidance. Employers may seek answers to frequently asked questions regarding the use of leave under the FFCRA on the DOL’s FFCRA website. Be sure to follow our blog and review our ReedGroup Coronavirus Resource Center which includes FAQs, links to compliance webinars, and other COVID-19 related materials.

If you are looking for assistance managing leave claims or to ensure leave compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.


Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

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