On September 11, the U.S. Department of Labor (“DOL”) promulgated revisions and clarifications to its April 1 regulations interpreting the Families First Coronavirus Response Act (“FFCRA”).  That Act, applicable to most employers with under 500 employees, provides paid sick leave of up to 80 hours and two weeks of unpaid time off followed by 10 weeks at partial pay to workers who can’t work because their child’s school or daycare provider has closed.  The DOL stated that the changes and clarifications were in response to the August 3, 2020 Southern District of New York’s decision invalidating certain portions of the DOL’s April 1 rules.  You can read our earlier blog on that subject here.

In August, the District Court ruled that four parts of the temporary rule are invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” who is not entitled to FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

The most impactful change is the newly-revised definition of “health care provider.” An employee is a “health care provider”, and the employer is not required to provide a person with leave, if the individual is “capable of providing health care services,” which include “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” or otherwise meets the FMLA’s definition of the term. Previously, the definition of “health care provider” was much broader, and included anyone employed at hospitals, medical schools and a range of other places “where medical services are provided,” as well as any employee of a contractor at one of those facilities and anyone employed by a business that produces medical equipment.

The DOL rules continue to maintain that no leave is available to employees where “there is no work from which to take leave.”  In practical terms, this means that employees who are furloughed are not entitled to the two types of leave.  The DOL also refused to change its stance that both employer and employee must agree if the employee is to take any expanded family and medical leave on an intermittent schedule.  It reiterated that such leave under the FMLA must avoid unduly disrupting the employer’s operations, and allowing employees to choose when to take such leave doesn’t further that policy.  The DOL also clarified that an employee requesting family and medical leave must provide the information in support of the need for leave as soon as practicable (which should be in advance if the need for leave is foreseeable.)  An employer may require an employee to furnish 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.

If your business requires advice regarding the COVID-19 leave laws, or circumstances under which it is required, please contact Offit Kurman’s group of experienced employment attorneys.