The District Court had struck down the Final Rule’s mandate that employees were not entitled to paid leave (at least in three of the six qualifying scenarios) unless their employers had work for them to do at the time they sought leave. However, the DOL stood by this “work availability” requirement. The DOL clarified that the requirement applies to all six leave-qualifying scenarios, noting that was its original intent and there is no statutory basis for treating some FFCRA reasons different than others. And, in response to the Court’s critique of the DOL’s “barebones” explanation for the requirement, the DOL provided the following more detailed reasoning:
Though the DOL affirmed that the work-availability requirement applies, it also reminded employers that they cannot make work unavailable in an effort to deny or avoid providing FFCRA (paid) leave benefits.
The DOL also reaffirmed the Final Rule’s provision that employees cannot take intermittent FFCRA leave without their employer’s consent. The DOL again expanded on its bases for this requirement, noting:
The DOL clarified that employees taking FFCRA leave on certain days to align with their children’s hybrid in-person/virtual schooling are not taking “intermittent” leave. Thus, such arrangements do not require employer consent.
The Final Rule contains distinct provisions on notice of FFCRA leave and documentation supporting FFCRA leave. The original Final Rule required employees to submit supporting documentation prior to taking leave, which the District Court deemed inconsistent with the FFCRA. In the revised Final Rule, the DOL eliminated the advance documentation mandate. Instead, employees can be required to provide documentation “as soon as practicable.” The DOL also corrected an inconsistency regarding the timing of notice for expanded family and medical leave (EFML). The upshot of all this is:
The FFCRA gives employers the option of denying paid leave to “health care providers,” which the DOL’s Final Rule had expansively defined to encompass, essentially, anyone in the health care field. The District Court struck down that definition as an overreach. In the revised Final Rule, the DOL has narrowed the definition to include only:
The revised Final Rule offers examples of types of employees who fall into this latter category. It includes nurses, nurse assistants, medical technicians, and any others who directly provide diagnostic, preventative, treatment, or integrated and necessary services. It also includes those who provide such services under the supervision of (or in assistance to) FMLA-defined health care providers, or nurses, nurse assistants, medical technicians, and other direct-providers. Finally, this category includes those who may not interact with patients or report to providers, but whose services are integrated with and necessary to the provision of patient care. For example, a lab technician who processes test results (perhaps for COVID-19 testing) needed for diagnoses or treatment meets this definition. By contrast, IT professionals, maintenance staff, human resources, food service workers, records managers, consultants, and billers, do not.
In short, the DOL’s narrowed definition goes beyond those licensed to provide patient care, but recognizes limits based on employees’ specific duties. Employers should continue to consider exclusions from FFCRA-paid leave on a case-by-case basis, now using the revised Final Rule’s framework.
Companies in all sectors of the economy continue to be impacted by COVID-19. Foley is here to help our clients effectively address the short- and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to deliver timely perspectives on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. Click here to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, click here and submit the form.