Posted on September 21, 2020
By: Lily Crespo Esq.
On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a federal court’s decision that invalidated a handful of regulatory provisions interpreting the FFCRA.
Q: Can employers require employees to obtain approval before taking FFCRA leave immediately?
A: Intermittent Leave Still Requires Employer Consent—But “Intermittent” May be Defined Differently
Background: On August 3, 2020, a federal court in New York struck down four parts of the FFCRA’s final rule: (1) the requirement that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) are available only if an employer has work available for the employee from which leave can be taken (“the work availability requirement”); (2) the requirement that an employee must have employer consent to take FFCRA leave intermittently; (3) the definition of an employee who is a “health care provider,” who an employer may exclude from use of FFCRA leave; and (4) the requirement that employees must provide their employers with certain notice and documentation before taking FFCRA leave (rather than after the leave begins).
In response, the DOL has issued revised regulations in which it clarified and doubled down on some of its original positions, while making some regulatory changes in line with the court’s ruling.
In its revised regulations, published and in full effect September 16, 2020, the DOL:
- Reaffirmed that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave, and provides its reasoning why this precondition is critical;
- Confirmed that intermittent leave under FFCRA can only be taken with employer approval;
- Provided an amended definition of “health care provider” that is narrower than its original regulations to cover employees who are health care providers under the classic Family and Medical Leave Act (FMLA) definition, as well as other employees who are employed to provide diagnostic, preventive, or treatment services, or other services that are integrated with and necessary to the provision of patient care; and
- Clarified the timeline for when an employee must provide notice of the need for leave and supporting documentation.
What the New York Federal Court said: The DOL does not have a good reason for requiring an employee obtain employer consent before taking permissible intermittent leave.
What the DOL said: Yes, we do.
What does “intermittent” mean? The DOL referred back to the classic FMLA regulations, which require that, when the need for leave is foreseeable, it must be scheduled in a way that is minimally disruptive to business operations—leading the DOL to reinforce the requirement of employer consent for FFCRA leave.
The preamble to the DOL’s new regulations address administration of FFCRA leave when an employee’s child participates in hybrid learning in which schools operate on adjusted or alternating schedules. Here, each day of school closure “constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” As a result, intermittent leave is not necessary on these occasions because the “school literally closes . . . and opens repeatedly.” In other words, a full single day of leave is not considered intermittent, and an employee does not need employer consent to take off Monday, Wednesday and Friday due to their child’s school closure, because Monday, Wednesday and Friday are separate school closures, each entitling the employee to FFCRA leave.
Takeaway: In the wake of the ruling from New York, the DOL reinforced support for employers and implemented some straightforward changes that further clarify employer responsibilities under the FFCRA. The DOL provided a common-sense application of the work availability rule that enjoys a much stronger chance of surviving legal challenge in the future. The new rule also carefully balances an employer’s operational needs when an employee requests intermittent leave.
Get some coffee if you feel like reading more…
- Press release here: dol.gov/newsroom/releases/whd/whd20200911-2
- New regulations here (currently unpublished): federalregister.gov/documents/2020/09/16/2020-20351/…
- Updated Q&A here: dol.gov/agencies/whd/pandemic/ffcra-questions
Please feel free to contact any of the experts at KLO as you face these and other legal issues. Bea, Kevin, Megan, Beth, and Lily can be reached at 406-542-1300 or by email.