On September 11, 2020, the Department of Labor (“DOL”) announced three revisions it was making to the regulations concerning the Families First Coronavirus Response Act (“FFCRA”) (29 C.F.R. § 826.) The revised regulations will take effect on September 16, 2020.
The DOL revised these regulations in response to a challenge by the State of New York and a ruling by the District Court for the Southern District of New York in that matter. (See New York v. United States Department of Labor (S.D.N.Y., Aug. 3, 2020, No. 20-CV-3020 (JPO)) 2020 WL 4462260.)
Shortly after the DOL issued its initial regulations implementing FFCRA on April 1, 2020, the State of New York challenged the DOL’s interpretation and regulatory authority on several key provisions of the FFCRA, including:
The District Court ruled in favor of the State of New York on all four issues. In response, the DOL announced it would revise the regulations in Sections 826.30, 826.90, and 826.100 to address the District Court’s concern regarding the third and fourth issues. However, the DOL rejected the District Court’s holding concerning the first and second grounds, electing to maintain its regulations concerning those matters as is, and thus paving the way for an appeal by the State of New York.
We discuss each of the three revised regulations and how nonprofit employers may need to change their practices in order to comply with such regulations below. Before doing that, we briefly review the first two issues and the regulations that remain unchanged.
Regulations Regarding “Work Availability” and Employer Approval of Intermittent Leave Remain Unchanged
The DOL rejected the District Court’s holding invalidating the “work availability requirement” in order for an employee to qualify for FFCRA leave and the requirement that an employee receive their employer’s agreement or approval before using FFCRA leave intermittently. In its decision, the District Court held that the DOL exceeded its rulemaking authority with the issuance of each of these regulations.
By rejecting the District Court’s holdings and declining to revise its regulations on these issues, the DOL effectively reaffirmed its initial interpretation concerning these matters. As a result, the regulations remain effective and unchanged on these subjects.
Therefore, nonprofit employers should continue to comply with the April 1, 2020 regulations and the DOL’s informal guidance on these subjects. For example, many nonprofit employers have chosen to require employer approval to use any leave under the FFCRA intermittently. As the DOL has chosen not to modify that regulation, nonprofits may continue to implement that rule. Although an appeal could be filed in the New York case, it will likely not be resolved before the FFCRA expires, unless the law is extended.
Regulations Revised by the Department of Labor
The DOL revised three regulations: (1) Section 826.30; (2) Section 826.90; and (3) Section 826.100.
“Definition of Health Care Provider” under Section 826.30
Sections 3105 and 5102(a) of the FFCRA provides discretionary authority to employers to exclude from the FFCRA’s leave entitlement employees who are “health care providers.” The District Court held that the DOL’s definition for health care providers in the April 1 regulations was too broad because it depended on the identity of the employer and not on any determination of the employees’ skills, role, duties, or capabilities. For example, the DOL’s lengthy definition included anyone employed at hospitals, medical schools and a range of other places “where medical services are provided,” without regard to the duties of the particular employee, according to the Court’s ruling.
As a result of the Court’s ruling, the DOL adopted a revised and more limited definition of “health care provider.” The new definition includes employees who fall within the definition of health care provider under 29 C.F.R. 825.102 and 825.125[1] (i.e., the Family and Medical Leave Act (“FMLA”) regulations defining “health care provider”), thereby including physicians and others who make medical diagnoses within this term. Second, the DOL revised 29 C.F.R. 826.30(c)(1)(i)(B) to identify additional employees who are “capable of providing health care services,” including “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
This change only impacts nonprofit employers that: (1) believe they employ persons who are health care providers; and (2) have elected to exclude health care providers from FFCRA’s coverage. For those employers, we recommend reviewing the specific skills, role, duties, or capabilities of the employees who were designated as health care providers and exempted. If the employer, in policy or practice, exempted any employees based on the identity of the employer as a health care provider and not on a determination concerning the skills, role, duties, or capabilities of the specific employee, we recommend revising the policy and/or practice in order to only exempt those employees who are capable of performing health care services. In addition to changing such leave policies and practices prospectively, the employer should reimburse such employees for leave taken that otherwise would have been covered by the FFCRA, but for the incorrect application of the exemption entitling the employee to such leave.
Notice and Documentation Required for Expanded FMLA under Sections 826.90 and 826.100
The remaining two revisions are discussed together because they complement each other.
First, 29 C.F.R. section 826.90 sets forth the circumstances under which an employee who takes EPSL or EFML must provide notice to their employer. Subsection (b) of that regulation governs the timing and delivery of notice by employees, and, according to the April 1 temporary rule, provided:
Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes [Emergency] Paid Sick Leave or Expanded Family and Medical Leave.
While this statement is accurate with respect to EPSL, the FFCRA provides a different standard for the provision of notice for EFML. Section 110 (c) of the Family and Medical Leave Act (“FMLA”) (29 U.S.C. § 2620(c)), as amended by FFCRA section 3102, expressly provides that “where the necessity for [EFML] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” Therefore, for EFML, advance notice may be required if and when the employee requesting such leave foresees needing the leave.
The DOL corrected this error by revising 29 C.F.R section 826.90(b) to provide that advanced notice of EFML is required as soon as practicable. Therefore, if and when the need for EFML is foreseeable, the employee requesting such leave must now provide notice of their request for such leave before taking the leave. If the need for EFML is not foreseeable, the employee may take such leave without providing their employer prior notice, but must still provide notice to the employer as soon thereafter as is practicable.
Second, 29 C.F.R. section 826.100 lists documentation that an employee must provide to their employer regarding the employee’s need to take FFCRA leave, and states that such documentation must be provided “prior to” taking EPSL or EFML.
The District Court held that the requirement that documentation be given “prior to” taking leave “is inconsistent with the statute’s unambiguous notice provision,” which allows an employer to require notice of an employee’s reason for taking leave only “after the first workday (or portion thereof)” for EPSL, or “as is practicable” for EFML.
The DOL corrected this inconsistency by revising 29 C.F.R. section 826.100 (a) to clarify that the documentation need not be provided “prior to” taking EPSL or EFML, but that such documentation must be provided as soon as practicable, which in most cases will be when the employee provides notice of such leave as provided under 29 C.F.R. section 826.90. In other words, an employer may require that an employee who is using any leave under the FFCRA – either EPSL or EFML – to provide the necessary documentation supporting such leave as soon as practicable. This documentation includes: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work (See 29 C.F.R. § 826.100 (a), as well as 29 C.F.R. section 826.100 (b)-(f) for the specific information required for each type of FFCRA leave). Accordingly, nonprofit employers should review their FFCRA policies and if their policies require employees to provide certification prior to taking leave, they should update their policies to state that employees should instead provide certification as soon as practicable.
If you have questions about these changes in the DOL rules and how they may affect your nonprofit’s operations, LCW attorneys are available to answer your questions.
[1] 29 C.F.R. 825.102 and 825.125 define “health care provider” to mean “[a] doctor of medicine or osteopathy who is authorized to practice medicine or surgery” or “[a]ny other person determined by the Secretary to be capable of providing health care services.”