On September 11, 2020, the U.S. Department of Labor (“DOL”) issued new regulations implementing the Families First Coronavirus Response Act (“FFCRA”), in a temporary rule effective immediately. In the temporary rule, the DOL reiterates its position that the FFCRA allows employees to take paid leave only if their employer has work that is otherwise available for them to perform. Last month, a federal judge in the Southern District of New York struck down substantial parts of the implementing regulations the DOL had issued in April, including this same work-availability requirement.
The judge held that the language of the FFCRA, granting paid leave to employees who are “unable to work (or telework) due to a need for leave because” of six qualifying conditions related to COVID-19, was ambiguous as to whether the qualifying condition must (a) prevent the employee from working, even if the employee would have been prevented from working anyway for other reasons; or (b) be the sole reason the employee is prevented from working. The DOL argued for the second reading, arguing that if an individual’s employer had no work for the individual to perform at a given time, that individual was not prevented from working “because of” a qualifying condition. The court noted that both the first reading (which was argued for by the State of New York) and the second were plausible, and held that the DOL’s “barebones explanation” for the work-availability requirement was insufficient.
In the September 11, 2020 rule, the DOL tries to correct this deficiency by providing substantially more explanation for its interpretation, citing to case law interpreting the term “because of” to require the condition to be a “but-for” cause—that is, in this case, that the employee would have work “but for” the qualifying COVID-19-related reason. If the employer does not have work available for an individual, the DOL concluded, “the individual would have no work from which to take leave,” and leave is thus unavailable.
This new rule will likely be challenged again, by New York and/or other states. But for now, at least, the DOL has made clear that paid leave is required under the FFCRA only if the employer would otherwise have work for the employee to perform.
The temporary rule also responds to a different part of the court’s order by substantially limiting who can be considered a “health care provider” who may be exempt from taking FFCRA leave. The DOL’s April final rule had applied that exemption to essentially every individual employed at a facility that provides health care services, which the court held was vastly overbroad. The new rule limits the exemption to individuals “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” The exemption explicitly does not apply to “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers” who happen to work for a health care facility.
DOL Offers Additional Guidance on FFCRA for Employees with Schoolchildren
The school year has begun, and parents are juggling a variety of different in-person, online, and hybrid school schedules. Recently, the DOL issued three additional FAQs pertaining to school schedules. The FFCRA provides paid leave to an employee (Expanded Family and Medical Leave, “EFMLA”) to care for a child whose school is closed due to COVID-19 related reasons. The new guidance clarifies that, for purposes of the EFMLA, a school is “closed” on any day a child cannot attend in-person. Therefore, if an employee has a child whose school is operating on a hybrid schedule where the child can only attend in-person on certain days, the employee is eligible for EFMLA for the days their child is distance learning at home. An employee who chooses distance learning for their child when the physical school location is open to in-person attendance, on the other hand, is not eligible for EFMLA leave for any day the child could have attended school in-person. However, if a child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, the employee may be eligible to take paid sick leave to care for the child, regardless of whether or not the child’s school is open.
Be sure to discuss, in detail, the child’s school schedule for employees requesting EFMLA leave. Employees with children in different school districts may have different school schedules and parents with children in different grades may have different distance learning days. In addition, since the situation is constantly changing, employers may wish to set a schedule for regular check-ins with employees (perhaps bi-weekly) regarding whether there have been any changes to their children’s school schedules.
Remember, employees must represent that no other suitable person is available to care for the child during the period of requested leave, and, with respect for children over the age of 14, employers may ask for a statement detailing the special circumstances that exist requiring the employee to provide care during daylight hours.
If you have questions regarding the FFCRA paid leave provisions discussed above or any other employment-related concerns, please contact William Parker (952-921-4602 or firstname.lastname@example.org), Caitlin Andersen (952-921-4619 or email@example.com), or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.