The Department of Labor has issued revisions and clarifications to the emergency paid family leave and paid sick leave temporary rules originally issued on April 1, 2020 under the Family First Coronavirus Response Act ("FFCRA") (as we originally discussed here). These temporary rules are set to expire on December 31, 2020. The Department's actions are largely in response to a New York District Court ruling invalidating parts of the FFCRA.

As you may recall, the FFCRA applies to certain employers with less than 500 employees, and provides up to two workweeks (80 hours) of paid sick leave to eligible employees who need to take leave from work for specified reasons related to COVID-19. The FFCRA also provides paid emergency family leave for up to 12 weeks to eligible employees who need to take leave from work to care for their child when the child's school or place of care is closed or the child care provider is unavailable due to COVID-19.

Below are the key changes and clarifications made by the Department which go into effect immediately. These changes and clarifications are designed  to enable more employees to leave the workplace to help prevent the spread of COVID-19 and to ensure eligible employees are not forced to choose between their paychecks and compliance with public health measures needed to combat the virus:

  • The paid sick leave and paid emergency family leave benefits are only available if the employee is working when the need for the leave occurs.   A common employer question was whether FFCRA paid benefits had to be offered to employees who were on layoff. DOL clarified that the answer is "NO." This means that if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave (perhaps the employer closed the worksite temporarily or permanently), the individual is not eligible for paid FFCRA leave. The employer is not required to make an hour-by-hour assessment as to whether the employee has tasks to perform, but rather should question whether the employee would have reported to work at all. The Department noted that employers are not permitted to avoid granting FFCRA leave by not making work available because this may be impermissible retaliation. 

  • An employee must seek an employer's approval if seeking "intermittent" FFCRA leave. The regulations authorize leave to be taken all at once or intermittently in separate blocks of time. Under the FFCRA, intermittent leave is only permitted when an employee has to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19. The Department clarified that such leave may be taken intermittently, but only if the employer consents. Under traditional Family Medical Leave Act principles, intermittent leave is permitted so long as it does not "unduly disrupt" employer's operations." The Department commented that allowing intermittent leave for other reasons (i.e., leave for an employee who is ill, directed to quarantine, or is caring for someone who is ill) would elevate the risk of transmitting the virus undermining the FFCRA's public health objectives, and thus is not allowed. As a reminder, intermittent leave is available for those who telework as well. Finally, the Department also explained that where a school or child care provider is closed (say for a hybrid schedule) several days a week, this is not "intermittent" leave and must be accommodated, and the time off must be allowed even though it's not being taken all at once.

  • The definition of "health care provider" is narrowed. As you may recall, the FFCRA allows employers to exclude employees from FFCRA benefits so long as they worked for a "health care provider" or "emergency responder". The stated purpose of this exception was to prevent disruptions to the health care system's capacity to respond to the COVID-19 public emergency. The original definition was expansive insofar as it allowed these employers to exclude virtually anyone employed in any healthcare facility, even if the employee was not directly responsible for patient care. The new definition instead focuses on the employee's role, rather than the nature of the employer. It still exempts all health care providers who are authorized to sign FMLA certifications as well as those who provide diagnostic, preventive, treatment, or other patient care services or whose work is integrated with and necessary to providing those services. However, persons who work in non-direct patient care positions such as IT professionals, building maintenance staff, cooks, accounting and billing personnel, and human resources staff are now eligible for these paid FFCRA benefits

  • An employee taking emergency family leave must give notice to his or her employer as soon as practicable. For emergency sick leave, the Department confirmed that notice may not be required in advance, but rather may only be required after the first workday (or portion thereof) for which an employee takes paid sick leave. However, for emergency family leave, advance notice of the leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave.

  • The documentation needed to support FFCRA leave and benefits need not be provided before the employee commences the paid leave.  An employer may require an employee to furnish the following as soon as practicable: (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. The employee may be required to provide other documentation depending on the qualifying reason for the requested leave.

In sum, the new Regulations add people to the list of those eligible for paid FFCRA benefits, ease some restrictions on how/when the leave may be taken and authorize flexibility on the part of employers in seeking documentation from the employee in support of the FFCRA leave. As a result, covered employers will need to review and revise their FFCRA policies and procedures accordingly.

We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or 704-765-1409, or visit us online at www.brgslaw.com.


Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Janet S. Soultanian
Ballard Rosenberg Golper & Savitt, LLP