What employers should know about the DOL's revised COVID-19 leave regulations

As the COVID-19 pandemic stretches into the fall, employees continue to be concerned about their financial, mental, physical and social health. Employers trying to help their employees and the company navigate these challenges have more regulations to review concerning the federal Families First Coronavirus Response Act (FFCRA), which were made in response to a federal court ruling that certain portions of the original regulations were invalid.

Related: Large employers raise the alarm on varying state regulations around paid leave

Following are a summary of the court ruling and the U.S. Department of Labor (DOL)’s key revisions:

What the Southern District of New York (SDNY) found invalid about the FFCRA regulations

In March 2020, Congress enacted the FFCRA, which applies to private employers with fewer than 500 employees and certain public employers regardless of size. The FFRCA created an emergency sick leave program and expanded the existing Family and Medical Leave Act (FMLA) to cover leaves of absence for certain COVID-19-related reasons.

To implement the requirements of the FFCRA, the DOL issued a set of regulations in April 2020 that are scheduled to expire by year-end 2020, along with the statute itself. Following litigation about the regulations’ validity, a federal court in the SDNY ruled in August 2020 that the following provisions were invalid and struck them from the regulations:

• The “work-availability” provision, which excludes benefits to employees whose employers do not have work for them. In other words, employers cannot deny leave or benefits to employees on furlough.
• The provision requiring employer consent for intermittent leave. The other rules regarding intermittent leave remain valid (i.e., banning intermittent leave based on qualifying conditions that implicate an employee’s risk of viral transmission).
• The definition of “healthcare provider” for the purpose of the exemption for healthcare employers.
• The requirement that employees provide their employers with documentation to support the leave before the leave. However, employers may still require documentation; it is just the timing that was problematic.

Aside from these regulations, the SDNY decision did not invalidate any other FFCRA provisions. However, it left employers in a state of limbo because it was not entirely clear how employers should comply with the decision, whether it applied outside of the SDNY or how the DOL would respond — whether by appeal, revised regulations or capitulation.

What changed in the FFCRA regulations – and what does it mean for your organization

The DOL addressed the SDNY decision with the following revisions to FFCRA regulations, set forth in a temporary rule that went into effect immediately on September 11, 2020.

The DOL:

• Reaffirmed that an employee may only take FFCRA if the employee has been working and described its rationale to address the SDNY ruling. Key takeaway: A furloughed employee would not generally be eligible for FFCRA leave due to lack of active work.
• Reaffirmed that an employee may only take FFCRA leave intermittently when permitted by law and if the employer approves intermittent leave and described its rationale to address the SDNY ruling. Key takeaway: The original FFCRA regulations regarding intermittent leave are back in play, for now.
• Revised the definition of “health care provider.” Key takeaway: Employees who are health care providers as defined by the FMLA are now included in the FFCRA definition, along with other employees who provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care.
• Revised the documentation requirement to clarify that an employee must provide documentation to their employer “as soon as practicable,” as opposed to before the leave. The DOL made a similar correction to the notice provision for the purpose of consistency. Key takeaway: Employers can still require employees to provide documentation to support FFCRA leave, even if employees submit it after the leave begins.

In summary, the DOL reaffirmed some of the original FFCRA regulations while adding detail, and revised others to conform to the SDNY decision. A copy of revised regulations is available here.

Staying compliant

Employers should consider the updated regulations, along with the SDNY decision, and determine with their legal counsel how to comply with the FFCRA. In addition, health care employers should carefully review the revised definition of “health care provider,” since it could impact their exemption status under the FFCRA.

That being said, even the revised regulations could be challenged in court, so employers should continue to monitor pending litigation and regulatory status. Above all, employers should always consult with their legal counsel to confirm they are administering the leave program per the most up-to-date standards.

Tony Dulgerian is senior counsel, US Insurance Law, MetLife.

Read more: 

• COVID-19: Employment law update and guidance for employers
• 6 categories of employment lawsuits to expect in the wake of COVID-19
• Families First Coronavirus Response Act: How school plans will impact employees