Employers Must Provide FFCRA Leave Even When There is No Work Available.
The court found that if an employee was not working due to a COVID-related reason as defined by the FFCRA, they are still entitled to emergency paid sick leave (ePSL) or emergency family leave (eFMLA) as applicable — even if the employer has no work available — so long as the employee is still employed by the employer. This supersedes the DOL rule which stated that an employer need not provide emergency paid sick and family leave when the employer "does not have work" for the employee.
Therefore, employers should:
- Consider whether it makes sense for their business to retain its employees and pay for FFCRA leave, or layoff/terminate employees, when there is no work available,
- Consider retroactive payment for eligible FFCRA leaves during any previous business closure or furlough, and
- Proceed with caution and consult counsel, until additional courts weigh in on this issue.
Employers May Only Ban Intermittent Leave When It Poses a Higher Risk of Infection.
The court also struck down the department's blanket rule requiring employer consent for intermittent leave (i.e., leave in separate periods of time, rather than one continuous period). Now, an employer is only permitted to reject an intermittent leave request when it correlates with a "higher risk of viral infection." Therefore, if an employee requests intermittent leave to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it. Employers are permitted to refuse intermittent leave for the other covered reasons under the FFCRA, such as when the employee is subject to a stay-at-home order or experiencing symptoms and seeking a medical diagnosis.
Employers May Not Impose Documentary Requirements as a Precondition to Leave.
The court further held that employers may not require employees to submit documentation, such as a doctor's note or stay-at-home order, prior to taking FFCRA leave. Therefore, employers should revise their FFCRA leave policies to the extent they require documentation as a precondition to leave. Employers should request notice and documentation from the employee "as soon as practicable."
The Department's Definition of "Health Care Provider" is Too Broad.
The FFCRA states that an employer of a "health care provider" or "emergency responder" may elect to exclude such employees from FFCRA benefits. The court struck down the department's definition of "health care provider," finding it is too broad. The department conceded that its definition included an "English professor, librarian or cafeteria manager at a university with a medical school." Because the court did not provide a new definition, health care industry employers should consult counsel in determining who qualifies as a "health care provider" for purposes of exemption from the FFCRA.