Department of Labor Updates Regulations For Family First Act Paid Sick Leave and Expanded FMLA Leave

By SGR November 13, 2020 blog, Featured, News

In August 2020, a federal court in New York struck down several parts of the Department of Labor’s (“DOL”) Final Rule providing guidance to employers and employees on the scope of the Family First Coronavirus Response Act (“Family First Act”). The decision of the United States District Court for the Southern District of New York struck down: (1) the Rule’s requirement that work must be available before the employer is required to provide paid sick leave; (2) the Rule’s definition of “health care provider”; (3) the requirement that an employer consent to an employee’s use of intermittent leave; and (4) the requirement that an employee provide appropriate documentation prior to taking Family First Act leave. As expected, the DOL has issued revised Regulations to address the issues raised in the New York decision, changing some of the prior requirements and keeping others with additional explanation or clarification.

The Family First Act, which is in effect through the end of 2020, requires employers with 500 or fewer employees to provide at least 80 hours of paid sick leave to any employee who:

is subject to a federal, state, or local quarantine or isolation order related to COVID–19;
has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2) (at 2/3 pay); or
is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The Family First Act also provided up to 10 weeks of paid leave at 2/3 pay (after 2 unpaid weeks) for employees who must care for their child because the child’s school or place of care has been closed, or the child’s childcare provider is unavailable, due to COVID-19 precautions.

Work Availability

The DOL’s final Rule clarified that the paid leave provisions did not entitle an employee to paid leave “where the Employer does not have work for the Employee.” The New York court found that this qualification was not included in the Family First Act itself and, therefore, the DOL exceeded its authority when it added the qualification. Under the court’s ruling, an employee who otherwise qualifies for Family First Act leave would be entitled to that leave even if his or her employer is closed or the employee has been furloughed or laid off due to Covid-19 restrictions.

In its revised Regulations, the DOL retained the qualification that, before a leave is payable, work must otherwise be available. The revised Regulations specifically rely on longstanding FMLA regulations making it clear that periods of time when the employee would not otherwise be expected to work may not be counted as part of the employee’s FMLA leave entitlement. The revised Regulations also rely on the wording of the Family First Act that the leave must be “because of” or “due to” one of the six reasons listed in that act, which the revised Regulations interpret as a requirement that one of the six reasons listed in the Family First Act be the “but for” reason for the leave. The revised Regulations also specifically noted that requiring employers who were not paying other employees because the workplace was closed down or employees were furloughed to pay employees for Family First leave would be an “illogical result” that Congress clearly did not intend.

Definition of “Health Care Provider”

The Family First Act permits employers to, at their option, exclude “health care providers” from paid leave benefits, but does not define “health care providers.” The DOL’s final Rule defined “health care providers” as any employee of “any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institutions, Employer, or entity.” The court found that this definition was too broad as it focused on the employer rather the employee and the employee’s actual duties, even though it conceded that employees who do not directly provide health care services to patients may nonetheless be essential to the health care system’s ability to function. The court left open the possibility that the DOL could provide a different interpretation of “health care provider” for purposes of the Family First Act than it does for the FMLA, but until it does, the only current regulatory definition for “health care provider” was the much narrower definition that is contained in the general FMLA regulations.

The DOL’s revised Regulations did change the definition of “health care provider” for purposes of which employees may be excluded from paid leave, but narrowed the definition from that contained in the original Regulations. Relying on the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019, the revised Regulations’ definition of “health care provider” includes “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.” The revised definition excludes individuals who provide services that affect, but are not integrated into, the provision of patient care. The revised Regulations also provide examples of employees who are not considered to be “health care providers” who can be excluded from paid leave, specifically information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. This list is intended to be illustrative, not exhaustive.

Intermittent Leave

The Family First Act does not address the issue of intermittent leave. In its final Rule, the DOL significantly limited the availability of intermittent leave under the Family First Act, specifying that the employer and employee must agree to the employee’s use of intermittent leave and limiting the use of intermittent leave for employees working on the employer’s premises to leave for the employee’s need to care for a child whose school or place of care is closed or where child care is unavailable. The court agreed that the limitation that intermittent leave could only be used by employees who needed to care for a child was reasonable in light of the need to minimize the risk that an employee could spread Covid-19 to others. However, the court found no reasonable basis for the requirement that the employer consent to the employee’s use of intermittent leave, and struck that part of the Rule.

The DOL’s revised Regulations reaffirmed that employer consent was required for intermittent leave, but clarified the difference between intermittent leave and consecutive requests for leave. The revised Regulations state that “the employer-approval condition would not apply to employees who take Family First leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.” Under this interpretation, each day the school is closed creates a separate reason for Family First leave that ends when the school opens again for that student.

Documentation Requirements

The final Rule also required that, before taking Family First Act leave, employees must submit documentation to their employer that indicates the reason for, and duration of, the leave, and where relevant, the authority for the isolation or quarantine order qualifying them for leave. The court found that the requirement that an employee submit documentation before beginning a leave was unreasonable, but left in place the requirement that documentation be presented to support the need for the leave. The Revised Regulations were amended to address this concern and now provide that, like documentation for a leave under the FMLA, documentation for a Family First leave must be provided as soon “as is practical.”

Employers should discuss any leave decisions regarding Family First Act compliance with counsel to avoid any potential exposure to liability relating to employee leave applications.

If you have any questions regarding the foregoing, please contact Nancy Abrams at (215) 241-8894 or nabrams@sgrvlaw.com.