Jul 23, 2020

Potential New FFCRA Rules from the Department of Labor

The guidelines surrounding employee leave due to COVID-19 are still evolving - stay on top of it all!

A federal court in New York recently threw out four federal Department of Labor rules related to the leaves provided by the Families First Coronavirus Response Act (FFCRA). Unfortunately, it’s not clear if the ruling applies nationwide or only in the Southern District of New York. Until there is further activity in the case – which may clarify whether the rules remain intact throughout the rest of the country – we recommend that employers err on the side of caution when administering FFCRA leaves and assume these particular rules no longer apply.

The Southern District of New York, where these four rules definitely do not apply, includes Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester counties.

Here are the rules that are at issue:

The requirement that work be available for an employee to use leave

DOL Rule: The DOL said that for an employee to use Emergency Paid Sick Leave (EPSL) or Emergency Family Medical Leave (EFMLA, aka EFMLEA), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.

If the Rule Doesn’t Apply: Availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

The requirement that employers agree to intermittent leave

DOL Rule: Employers must agree to intermittent leave when employees need time off to care for children.

If the Rule Doesn’t Apply: If an employee needs intermittent leave (partial weeks or partial days off) to care for a child, the employer must allow it.

The requirement that employees provide documentation in advance of taking leave

DOL Rule: Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.

If the Rule Doesn’t Apply: Employers can still require documentation (and need to in order to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as practicable” when taking EFMLA and after the first workday of leave when taking EPSL.

The definition of health care provider, for the purpose of exemption from leave

DOL Rule: The DOL defined health care providers very broadly. (So broadly that a janitor working at a drugstore or an English professor at a University with a medical school could be exempt.)

If the Rule Doesn’t Apply: Employers should apply the exemption only to those employees capable of directly providing healthcare services.

We will be watching closely for activity in this case and will let employers know if and when things change or become clearer.