Department of Labor Updates FFCRA FAQs
By Kelly A. Trainer, Katy A. Suttorp, and N. Richard Shreiba Burke, Williams & Sorensen, LLP
The Department of Labor (“DOL”) has issued a variety of updates to the FAQs on the Families First Coronavirus Response Act (“FFCRA”). This article will address the changes that were implemented to respond to questions employers and employees had regarding the FFCRA for school leave during distance learning and “hybrid” learning, as well as updates that were issued in response to a federal district court decision that invalidated four aspects of the FFCRA.
FFCRA During Distance and Hybrid Learning
With schools returning for the fall term, the Department of Labor issued new FAQs on August 27, 2020 regarding the interplay of the FFCRA with distance learning and “hybrid” models of instruction (a “hybrid” instruction model involves a combination of in-person and distance learning). Eligibility to take childcare/school closure-related leave under the FFCRA will depend largely on the options that the child’s school or school district offers. In short, if the student could attend school in person, but the employee opts out of in-person instruction, then the employee is not eligible for FFCRA leave.
- If the school offers the option of a regular schedule with in-person instruction, then the school is not “closed” due to COVID-19 related reasons, and the employee is not eligible for FFCRA leave.
- If the school offers multiple options, and one of them is in-person instruction, and the employee elects another instruction model, then the school is not “closed” due to COVID-19 related reasons and the employee is not eligible for FFCRA leave. Note that if the 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 for the 80 hours of Emergency Paid Sick Leave (“EPSL”).
- If the school is operating on a “hybrid” model as the only in-person option, then the employee is eligible to take FFCRA leave on the days (or, for some hybrid models, portions of days) that the student is required to participate in distance learning.
- While the FAQs do not clearly address the situation where a school offers three options (complete in-person, hybrid, or complete distance learning), the FAQs imply that an employee would be ineligible for FFCRA leave if they chose hybrid learning because the school is not “closed” to the student on the distance learning days.
Employers are encouraged to communicate with employees about this guidance and to inform employees regarding their specific options for each situation. Employers also may choose to be more generous with their leave policies than the FFCRA requires, and to allow employees to take leave when they are not eligible for the FFCRA. Any such leave should be set forth in a written policy that articulates the parameters of the program. Employers opting to provide enhanced leave benefits to employees should also be mindful that the leave given solely under employer policy does not count against the employee’s EPSL or Emergency Family Medical Leave Act (“EFMLA”) time.
FFCRA Changes Following State of New York v. United States Department of Labor, et al. 
On August 3, 2020, a Federal Judge for the Southern District of New York invalidated four aspects of the DOL’s temporary rules implementing the leaves available under the FFCRA. The Court found that the DOL had exceeded its authority in enacting certain provisions of the temporary rules under the FFCRA. Following the Court’s ruling, the DOL published a new temporary rule on September 11, 2020. The new DOL rule largely reaffirmed, partially revised, and provided a further explanation for its position regarding its temporary regulations implementing the FFCRA.
A. The Work Availability Requirement
In the original DOL temporary rule, the DOL required a “but for” requirement for three of the six qualifying leave reasons under the FFCRA. Essentially, the “but for” requirement mandates that “but for” the employee’s qualifying reason for taking a leave under the FFCRA, the employee would have had available work. The practical effect of this requirement was that an employee was not eligible for FFCRA leave if the employer did not otherwise have work available for the employee. The Court’s decision stated that under the DOL rules, it was not clear that the “but for” requirement applied to all six qualifying leave reasons.
Additionally, the Court found that the DOL did not provide sufficient reasoning for its imposition of the “but for” requirement. However, in its recent release following the Court’s decision, the DOL reiterated that when applying the traditional interpretation of “because” and “due to,” which are the terms used in the FFCRA, the only reasonable outcome based on longstanding Supreme Court interpretations of other statutes is that this implies a “but for” requirement. In other words, but for the employee’s qualifying reason for taking a leave under the FFCRA, the employee would be working. Hence, if an employee is not expected or required to work, such as in a situation of a temporary worksite closure, then the employee is not taking a leave.
Consequently, under the revised DOL temporary rule, the DOL provided explicit clarification that the “but for” requirement does apply to all six qualifying reasons for taking a leave under the FFCRA.
B. The Employer-Approval Requirement
The DOL’s original temporary rule enacted on April 1, 2020, stated that employer approval is required to take intermittent FFCRA leave. The Court found that the DOL’s original rule did not adequately explain the rationale for this requirement. Following the Court’s ruling, the DOL reaffirmed that where intermittent FFCRA leave is permitted by regulations, employees must obtain the employer’s approval. The DOL provided additional rationale for its policy by elaborating that the employer approval requirement will provide assurances that the FFCRA’s spirit of containing COVID-19 is followed. Essentially, if an employee is able to take intermittent leave on the employee’s own terms for the employee’s own COVID-19 illness, that would run afoul the FFCRA’s spirit since an infected employee would potentially be going into the workplace while still infectious.
The DOL reaffirmed that employer approval is also required to take intermittent leave (whether under EMLA or EPSL) due to a child’s school closure. Importantly, however, the DOL also said that leave taken for hybrid school is not being taken intermittently:
[t]he employer-approval condition would not apply to employees who take FFCRA 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. . . . For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).
While the DOL added some additional rationale for its rule to comply with the Court’s decision and provided guidance regarding hybrid learning, the newly revised temporary rule did not change in a practical sense; requests for intermittent leave under the FFCRA are still subject to employer approval.
C. Health Care Provider Redefined
The FFCRA gives employers the option to exclude “Health Care Providers” from leave under the act. The reason for providing this option to employers is ensuring that there is not a shortage of health care providers during a pandemic.
The DOL’s original temporary rule provided an expansive definition for “Health Care Provider.” The definition largely focused on the employer’s place of business rather than on the employee’s job duties. For instance, the definition included employees that are employed at any doctor’s office, or any facility that performs laboratory or medical testing. During the litigation, the DOL conceded that a librarian working at a university with a medical school would actually fall within the “Health Care Provider” definition. The Court’s decision invalidated this definition on the basis that the DOL exceeded its authority by promulgating such an overly broad definition.
Following the Court’s ruling, the DOL revised its definition of a “Health Care Provider” to cover all employees who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to provide patient care. This revision implements the Court’s decision requiring a focus on the employee’s job duties rather than the employer’s business.
D. Notice of Leave for the EPSLA and EFMLA
In the original temporary rule, the DOL required that, prior to taking the leave, employees submit to their employers documentation providing notice of their reason for leave, duration of the leave, and if the employee is taking the leave due to a quarantine or isolation order, the authority qualifying them for the leave. The Court’s decision stated that the original rule for notice requirement was more onerous than the statute itself and on that basis it invalidated the rule. The Court highlighted that the FFCRA states where a leave is foreseeable, the employee shall provide notice of leave as such notice is practicable. This is a much more lenient standard than the notice standard the DOL originally adopted.
Accordingly, the DOL revised the notice requirement the EPSL to provide for employee notice “as soon as practicable.” The DOL revised the notice standard for the EFMLA to clarify that advanced notice of leave under the EFMLA is required as soon as practicable. Additionally, if the need for leave is foreseeable, the notice should be provided before taking leave.
The FFCRA continues to evolve as it works its way through implementation and the court system. Keeping up with the changes can be challenging. This is another reason why it is so important to check with your legal counsel and/or your regional Risk Manager at any point you encounter FFCRA-related questions.
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