These new rules look a lot like the old ones: DOL stands firm in response to SDNY decision in its revised FFCRA rules

By Porter Wright on September 15, 2020

Last Friday, Sept. 11, 2020, the U.S. Department of Labor (DOL) issued new temporary rules on the Family First Coronavirus Response Act (FFCRA) to address certain previously-implemented rules the Southern District of New York recently struck down. As background, check out our post from Aug. 6, 2020, describing the decision from the Southern District of New York. And by address, the DOL in fact decided to, as they put it, “reaffirm and provide additional explanation” for its position on furloughs and intermittent leave, which, on the whole, benefit FFCRA-covered employers.

The new rules cover the following four areas:

Furloughed employees’ ineligibility for FFCRA leave: The DOL reiterated its previous stance that employees are eligible for FFCRA leave “only if the employee has work from which to take leave.” In other words, employees on furlough because of lack of work may not take FFCRA leave, even if the lack of work is arguably a direct result of economic conditions caused by the pandemic.
Intermittent leave only by mutual agreement: The DOL also stuck to its guns in its position that intermittent leave is available under the FFCRA only if the employer and employee agree to its use. This position was further explained in the rulemaking as being appropriate to avoid further spread of illness.
Narrower definition of “health care providers” who may be excluded from taking FFCRA leave: The DOL revised the rule’s definition of “health care provider” to address the breadth concerns noted in the SDNY decision. The revised definition now states that a “health care provider” can be an employee who either meets the Family Medical Leave Act (FMLA) definition of the term (e.g., doctors, clinical social workers, physician assistants, and nurse practitioners) or a person who is “capable of providing health care services” including “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” The rule also provides further examples of jobs that are included and excluded from the revised definition.
“As soon as practicable” timing of documentation to support FFCRA leave: The documentation required to take FFCRA is now required “as soon as practicable” rather than “prior to” taking the leave. By way of reminder, employers may require employees requesting FFCRA leave to provide the following information: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work.

These updated rules take effect on Sept. 16, 2020 and will sunset with the FFCRA’s expiration on Dec. 31, 2020.

Interestingly, many of these changed rules do not fully remedy the issues raised in the Southern District of New York opinion, so further challenges to these revised rules are likely. Stay tuned, and be ready to roll with these punches as we have continued to do for the last several months. As always, reach out to employment counsel if you are unsure how the FFCRA applies to your business or how to handle a request for leave in a COVID-19-related circumstance.

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