On September 11, 2020, the Department of Labor (DOL) enacted revised regulations, due to come into effect on September 16, 2020, regarding the requirements for emergency paid and extended family leave and medical leave under the Family First Coronavirus Response Act (FFCRA)) . In response to an August 3, 2020 decision by the U.S. District Court for the Southern District of New York City (District Court) that invalidated certain FFCRA regulations, the DOL’s revised regulations largely reaffirm its previous regulations and provide additional guidance.
Unfortunately (for employers) the DOL has been actively tracking the individual and collective claims of employees based on the FFCRA. With DOL’s active approach to enforcement, employers need hands-on guidance more than ever.
To help employers striving for full compliance, here are three lessons learned from the new FFCRA regulations:
1. Employers may require workers to submit their FFCRA leave at (or about) the time of notification of their FFCRA leave, not “before” as permitted under earlier DOL provisions. Background:
In the earlier DOL regulations, published April 1, 2020, employers were allowed to request documentation “before” employees take FFCRA leave. However, employers were only allowed to request notification of FFCRA leave either “after the first day of work (or part of it)” for emergency paid sick leave or “as practical” for extended family and sick leave. In its opinion, the district court found a perceived contradiction between the documentation and notification obligations.
New regulations:
Under its new regulations, DOL clarifies that documentation may not be required “prior to” taking FFCRA sheets. Instead, employees may need to provide documentation “as soon as possible”. In most cases, this happens when the employee quits their vacation. The DOL provides the following example of its new termination obligations: “If an employee learns on Monday morning before work that his child’s school will be closed on Tuesday for COVID-19 reasons, the employee must notify his employer as soon as possible (probably on Monday at work). If the need for extended family leave and medical leave was unforeseeable – for example, if that employee found out about the school’s closure on Tuesday after reporting to work – the employee can start the vacation without prior notice but must cancel immediately . “
Bring away:
Employers can (and should) continue to request documentation in support of FFCRA vacations. For paid emergency leave, documentation may be required after the employee’s first working day (or part of the working day). Documentation may be required for extended family and sick leave if the employee learns of the need for leave. In relation to all FFCRA leave, employers should require workers to provide the following in addition to any documents that may be required by the worker’s specific qualification: (1) the worker’s name; (2) the dates for which leave is requested; (3) the legitimate reason for the vacation; and (4) an oral or written statement that the employee cannot work.
2. Employees are not entitled to FFCRA vacation during vacation or on days when no work is available.
Background:
In its April 1, 2020 regulations, the DOL wanted to provide that workers would only be entitled to FFCRA leave if the legitimate reason is the actual reason the worker is unable to work. For example, if an employee was instructed by their doctor to quarantine themselves while the employee was otherwise on leave, the provisions of the DOL indicated that the employee was not entitled to FFCRA leave. However, the DOL did not explicitly state the work availability requirement when referring to specific qualifying reasons. Contrary to the DOL’s understanding of “vacation” for employees, the district court pointed out that FFCRA vacation may be available for employees who are otherwise not required to work.
New regulations:
In response to the District Court’s opinion, DOL revised its rules to explicitly include the work availability requirement for workers eligible for FFCRA leave. As a basis for its revision, the DOL relied on the long-standing principles of “vacation” as absence from work, according to which the employee is expected or must be obliged to report to work at all.
Bring away:
Employees are only entitled to FFCRA leave if they are expected or required to report to work. In practice, this means that employers do not have to give their employees paid leave when they are on vacation or when work is otherwise unavailable. Please note, however, that nothing in the new regulation changes the general obligations of employers under the Fair Labor Standards Act (FLSA). According to the FLSA, “exempt” employees must receive their full salary for each week that the work is performed, regardless of allowable allowances.
3. Employers may, at their discretion, offer temporary FFCRA leave to workers who are either (1) teleworking or (2) taking leave due to school closure or childcare unavailability.
Background:
Under the Family and Medical Leave Act of 1993 (FMLA), “intermittent leave” refers to sheets taken in separate periods of time for a single illness or injury, as opposed to an uninterrupted period. According to the FMLA, employees can take temporary leave, but only under certain circumstances.
However, the FFCRA’s extended family and sick leave (Temporary Amendment to the FMLA) did not specifically allow or deny temporary leave. In its provisions to implement the FFCRA, the DOL required that temporary leave, if available, could only be taken with the consent of the employer. The district court, which invalidated the DOL’s requirement for employer’s consent, found that DOL did not adequately explain the basis for the employer’s consent requirement, particularly when the employee is teleworking or when leave is due to childcare or school availability is based.
New regulations:
The DOL reiterated that due to a COVID-19 related school closure or the unavailability of childcare, workers may be able to get temporary leave, but only with the consent of the employer. In response to the District Court, the DOL stated that the FMLA has long recognized the need to balance a worker’s vacation needs with an employer’s interest in avoiding disruption.
With respect to employees requesting leave for other FFCRA-qualifying reasons, e.g. For example, if a doctor is instructed to quarantine, an employee who teleworks (and does not report to the construction site) takes temporary leave for one of the FFCRA’s qualifying reasons, as long as the employer agrees. In its justification, the DOL stated that the option of teleworking requires the consent of the employer. Therefore, employers cannot generally be compelled to allow temporary teleworking.
Bring away:
In their sole discretion, employers may continue to grant or deny temporary FFCRA to employees requesting vacation due to COVID-19-related school closings or childcare unavailability. Although temporary vacation can be an administrative burden, some employers can benefit from the flexibility that allows employees to temporarily report to the construction site or to telework. Employers reserve the discretion to allow (or deny) employee telework requests continuously or intermittently.
Final thoughts: According to the most recent guidelines from the EEOC, employers can ask workers to apply for housing before the workplace reopens or before workers return from vacation. If you don’t already have lodging policies and procedures in place, now may be the ideal time to adopt streamlined ADA lodging policies and procedures.
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