The U.S. Department of Labor (DOL) revised its April 1, 2020 regulations about who qualifies for emergency sick leave under the Families First Coronavirus Response Act (FFCRA) after parts of its prior regulations were struck down by a New York federal court on August 3, 2020 (see earlier blog post). The NY court struck down four provisions of the prior regulations:

  1. The requirement that work be “available” in order to take FFCRA leave from work;
  2. The requirement that all intermittent use of FFCRA leave requires employer permission;
  3. The broad definition of the “health care provider” exclusion from coverage; and
  4. The requirement of documentation for taking paid FFCRA sick leave.

The new temporary rules take effect September 16th. The key portions of the new rules are as follows:

  • Employees can only take FFCRA sick leave if there is work from which to take leave–meaning that employees on layoff or furlough are not eligible (re-affirming the provision that the court struck down);
  • Intermittent leave is only available with employer permission for childcare or school unavailability and for intermittent telework (re-affirming the provision that the court struck down);
  • The definition of a “health care provider” (that is exempt from FFCRA paid leave) was narrowed to those employees “capable of providing healthcare services” such as “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care”;
  • Employees must provide documentation to support the need for leave “as soon as practicable,” which, in most cases, will be when the notice is provided; and
  • Codified Q&A documents issued by the DOL since the initial regulations were published.

Notably, the NY court struck down the original regulations requiring available work, but the DOL reinstated the requirement. The DOL explained that the work-availability requirement was intended to apply to all forms of expanded FMLA and emergency sick leave and that the FFCRA statutory language supports that interpretation. Employees on furlough or laid off from work must rely on other programs for pay, such as Paycheck Protection Program funds or expanded unemployment benefits. The DOL cautioned, however, that employers may not withhold work in order to prevent use of FFCRA paid sick and family leave. Doing so would be considered actionable retaliation under the FFCRA.

As for intermittent leave, the DOL reaffirmed its position that intermittent leave requires employer permission and is only available for school and childcare unavailability and intermittent telework. To allow intermittent leave for care for a family member who is ill with COVID-19 or quarantined would be a safety risk to the workplace by increasing the likely spread of COVID-19. Employees who are teleworking may take intermittent leave with employer permission for any of the available FFCRA sick and family leave reasons because the exposure risk in the workplace is eliminated. Interestingly, the DOL stated:

the 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. 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.

It is only when the intermittent leave is the employee’s choice that it requires employer approval.

The temporary regulations remain in place until December 31, 2020.