DOL Revises COVID-19 Sick Depart and Household And Medical Depart Guidelines Following Courtroom Ruling | Weintraub Tobin

On September 11, 2020, the U.S. Department of Labor issued revised regulations for the Families First Coronavirus Response Act (FFCRA). The regulations implement the provisions of the FFCRA’s Paid Sick Leave Act (EPSLA) and EFMLEA (Emergency Family and Medical Leave Expansion Act). The revised rules were created to address a decision by a federal court in New York that invalidated previous rules that employees who want to take EPSLA and EFMLEA vacation must be able to find work elsewhere and whether or not an employer can provide one must agree to temporary leave. The revised regulations also specify and restrict the definition of the term “healthcare provider” within the framework of the FFCRA and regulate the requirements for medical documentation that employees must meet in order to be entitled to vacation.

Brush up on FFCRA

In March 2020, at the beginning of the COVID-19 pandemic, Congress enacted the FFCRA. We first blogged about the FFCRA here. In short, the FFCRA requires employers with 500 or fewer employees to offer up to two weeks of EPSLA vacation to workers who miss work for qualifying reasons related to the pandemic. If the need to miss work is due to the employee being forced to stay at home with a child whose school or childcare facility is closed due to the pandemic, EFMLEA employees can take up to 12 weeks of paid and unpaid vacation . The first two weeks of EFMLEA leave are unpaid, but workers requesting payment may choose to use EPSLA leave or any other paid leave that is otherwise available to the employee, e.g. B. Sick leave under state law or accrued paid vacation benefits. The last 10 weeks of EFMLEA vacation are paid for. Employers can receive a tax credit for every vacation paid under the FFCRA. Unless extended, the FFCRA will expire at the end of 2020.

New York Opinion void certain FFCRA regulations

Last month, a federal court on a challenge by the New York Attorney General removed four provisions of the FFCRA’s earlier provisions. In particular, the court has enacted regulations that require workers to have work elsewhere before they can qualify for EPSLA or EFMLEA. Employees must obtain the consent of the employer prior to taking temporary leave, and employees must provide medical records explaining the reasons for the leave. Finally, the court found the FFCRA’s definition of “health care provider”, which was used to identify those health care providers who were not eligible for vacation, widely used.

The revised regulations

Following the New York ruling, it was widely expected that the DOL would issue revised regulations on the issues raised by the court. The September 11, 2020 version of DOL does just that. According to the DOL press release, which can be found here, the revisions will:

• Reaffirm and explain the requirement that employees are only allowed to take FFCRA leave if they have other work available.
• Confirm again and also explain whether an employee has permission from the employer to take temporary FFCRA leave.
• Revision of the definition of “health care provider” so that only employees are included who meet the definition of this term in accordance with the provisions of the Family and Sick Leave Act or are employed for the provision of diagnostic services, prevention services, treatment services or other services that are integrated into the services are and are required for the provision of patient care which, if not provided, would adversely affect patient care.
• Make it clear that employees must provide their employers with the necessary documentation to demonstrate their need for an FFCRA vacation as soon as possible.
• Correct an inconsistency regarding when employees may be asked to notify their employers of the need for extended family and sick leave.

Work availability requirement

DOL’s position that work must be available to an employee who wishes to take leave reflects a duplication of its court-knocked-down rules. Recognizing the court’s view that the previous regulation did not provide sufficient analysis of why the worker needs work to be available, DOL made this analysis available. The DOL clarified that if the work is not available due to circumstances other than an FFCRA-qualifying reason, e.g. For example, if an employee is on leave or the company is temporarily closed, there is no work available for an employee to take vacation from.

The DOL further stated that “Vacation is most simply and clearly understood as an authorized absence from work; If an employee is not expected or required to work, he does not take vacation. “In these circumstances, an employee can apply for unemployment insurance benefits instead. However, the revised regulation makes it clear that employers cannot hold back work to avoid paying EFMLEA or EPSLA. Instead, the work does not have to be available for legitimate business reasons.

Employer’s consent to temporary leave

Just as with the work availability requirement, the New York court has denied the requirement that workers taking EPSLA or EFMLEA intermittent leave need to seek approval from the employer because, according to the court, the DOL’s original rule did not provide sufficient analysis and Explanation for the requirement included. Again, the DOL has doubled its previous rule, providing much more detailed reasons for it. The DOL found that the FMLA only allows for temporary leave for qualifying reasons such as medical necessity and the agreement between employer and employee. Since the FFCRA is silent about the ability of workers to take temporary leave and the basis for the “medical necessity” of leave under the FMLA does not fit within the EFMLEA framework, DOL concluded that it was discretionary is to weigh the vacation needs of the employees with the employer must avoid operational disruptions. These competing interests were balanced by requiring workers to obtain employer consent to take temporary leave.

Limited definition of the service provider with exception

The FFCRA exempts employers from offering EFMLEA or EPSLA to certain healthcare providers. The previous definition, which the New York court found too broad, included “anyone employed in a place where medical services are provided”. This could have included those employees in the facilities who didn’t even provide healthcare services, such as IT staff, staff, or kitchen workers. According to the revised rule[a] A person is not a health care provider just because their employer provides health care services or because they provide a service that affects the delivery of health care services. Rather, the employee must meet the definition of the health care provider under the FMLA (essentially those employees who provide the health services directly) or those who are “employed to provide diagnostic services, prevention services, treatment services or other integrated services and are necessary for the provision patient care and, if not provided, would adversely affect patient care. “

Notice and documentation requirements

Under the previous rules, which were struck down by the New York Court, workers were required to notify employers of the need for an FFCRA vacation, as well as documentation of the need for vacation, before they were eligible. According to the revised regulation, the employees only have to submit the notification and documentation “as soon as possible”. However, the DOL noted that in cases where employees need vacation due to a child’s school being closed, vacation is almost always predictable in advance and should therefore be granted before vacation.

Snack for employers

Currently, employers can follow the new DOL regulations when managing FFCRA leave. This means employers are not required to give EFMLEA or EPSLA leave to employees who are on vacation or otherwise incapacitated for reasons unrelated to the COVID-19 pandemic. Employers can also choose whether to grant employees temporary leave under the FFCRA. However, such decisions should be made for legitimate business reasons and applied consistently to avoid the risk of discrimination claims. Healthcare employers can use the health care provider’s updated definitions to assess whether workers are eligible for FFCRA leave. Finally, employers should not require workers to provide notice and documentation showing that they need an FFCRA leave any earlier than is practical in the circumstances.

Employers should also be aware of future developments related to these regulations. First, it is not yet known whether they will face further legal challenges and, if so, how those challenges will play out. Employers should also monitor whether Congress decides to extend the FFCRA beyond the current December 31, 2020 expiration date, with or without changes. Employers with uncertainties in these areas should work with their legal advisor to ensure that their practices and policies are compliant.