On September 11, 2020, the U.S. Department of Labor (DOL) issued a new administrative rule concerning the Families First Coronavirus Response Act (FFCRA), a federal law that provides two forms of COVID-19-related paid time off to employees of businesses with fewer than 500 employees. The rule comes just over a month after a New York federal court rejected substantial portions of the agency’s prior FFCRA guidance in State of New York v. U.S. Department of Labor et al., No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020). And while the new rule does include some revisions based on the court’s critiques, it mostly doubles down on several of the DOL’s prior interpretations of the FFCRA that were rejected by the Court. More particularly, in the new rule, the DOL:

  • Reaffirms that an employee may only take FFCRA leave if the employer has work available for the employee.
  • Reaffirms that intermittent FFCRA leave may only be taken with an employer’s approval.
  • Narrows the definition of the term “health care provider” (although still not as narrowly as that term is defined in other federal statutes).
  • Revises the FFCRA’s documentation requirement to provide that paperwork supporting the need for leave may be given “as soon as practicable” (as opposed to before the leave commences).

The new rule took effect on September 16, 2020 and will remain in place through December 31, 2020, when the FFCRA is set to expire.

“Work availability” requirement – an employee is eligible for FFCRA leave only if there is work available to the employee

In striking down the DOL’s prior FFCRA rule, Judge Oetken held in his August 3, 2020 decision that the DOL’s work availability requirement – meaning the requirement that an employer must have work available for an employee in order for the employee to be eligible for FFCRA leave – was contrary to the purpose of the FFCRA. Nevertheless, in the new rule, the DOL reiterates that an employee is only eligible for FFCRA leave if there is work available to the employee. If there is no work for the employee to perform due to reasons other than an FFCRA-qualifying reason for leave – such as a temporary or permanent worksite closure, or a furlough – then, according to the DOL’s reaffirmed guidance, the employee is not entitled to FFCRA leave.

Intermittent leave – employer approval is still required

The new rule also reaffirms – again contrary to the federal court’s opinion – that employer approval is required for an employee to take intermittent FFCRA leave for qualifying reasons that do not exacerbate the risk of COVID-19 contagion, such as to care for a child whose school has closed.

Nevertheless, the rule clarifies that FFCRA leave taken in full-day increments to care for children whose schools are operating on an alternate-day or hybrid-attendance basis is not considered intermittent leave. Rather, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” This guidance will prove particularly useful to parent-employees whose children have returned to school on an alternate-day or hybrid-attendance basis.

New definition of “health care provider”

In his August ruling, Judge Oetken nixed the DOL’s expansive definition of the term “health care provider” contained in the agency’s prior rule. In the new rule, therefore, the DOL creates a new definition of “health care provider” that lands somewhere between its prior, expansive definition and the narrow definition found elsewhere in federal employment law.

Specifically, under the new rule, the FFCRA definition of “health care provider” now includes “individuals who are capable of providing health care services, and are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The new rule specifically lists the types of employees who fall within this definition: nurses, nurse assistants, medical technicians, and any other persons who directly provide these types of services; employees providing services under the supervision or direction of health care providers such as doctors and nurses; and employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

In contrast, the new rule also gives examples of the types of employees who are not considered health care providers, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

Documentation may be provided “as soon as practicable”

Finally, the DOL concluded that requiring employees to provide documentation “prior to” taking leave was inconsistent with the FFCRA’s notice provision. The rule thus clarifies that documentation need not be given “prior to” taking leave, but may be given “as soon as practicable,” which in most cases would be when the employee provides notice.

It remains to be seen whether the DOL’s new rule, like its old one, will be subject to legal challenge (particularly since the FFCRA is set, at present, to sunset in just a few months). In any event, given the constantly changing COVID-19 environment, employers should consult legal counsel whenever an employee requests to take FFCRA leave to ensure compliance with the new rule and other applicable state and local leave laws, particularly given the tension between the DOL guidance and emerging case law.