On September 11, 2020, the Department of Labor (“DOL”) promulgated three revised regulations concerning the Families First Coronavirus Response Act (“FFCRA”) (29 C.F.R. 826.) The revised regulations will take effect on September 16, 2020, upon publication of the revised rule in the Federal Register.
The DOL revised these regulations in response to a challenge by the State of New York and a ruling by the District Court the Southern District of New York in that matter (See (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020)).
Shortly after the Department codified the temporary rule governing the FFCRA on April 1, the State of New York challenged DOL’s interpretation and regulatory authority on several key provisions of the FFCRA, including: (1) the requirement that Emergency Paid Sick Leave (“EPSL”) and Expanded Family and Medical Leave (“EFML”) are available only if an employee has work from which to take leave (i.e., “work availability requirement”) (29 C.F.R. 826.20); (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval (29 C.F.R. 826.50); (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from receipt of FFCRA leave (29 C.F.R. 826.30(c)(1)); and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave (29 C.F.R. 826.100).
While the District Court ruled in favor of the State on each of the four subjects described above, the Department revised regulations in Sections 826.30, 826.90, and 826.100 to address the District Court’s concern regarding the third and fourth issues described above. The Department rejected the District Court’s holding concerning the invalidity of other regulations, effectively reaffirming the Department’s initial interpretation and positions concerning those matters as codified in the April 1 temporary rule and paving the way for an appeal by the State.
While we will discuss each of the three revised regulations as well as how public employers may need to change their practices in order to comply with such regulations, we begin by briefly reviewing 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 to receive their employer’s agreement or approval before using FFCRA leave intermittently. In its decision, the District Court held that the Department exceeded its rulemaking authority with the issuance of each of these regulations.
By declining to revise these regulations in order to address the Court’s concerns, the Department effectively reaffirmed its initial instruction concerning these matters. As a result, on these subjects, the temporary rule remains effective and unchanged.
Therefore, public employers should continue to comply with the April 1 temporary rule and the Department’s informal guidance on these subjects. 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
As provided above, the Department revised three regulations: (1) Section 826.30; (2) Section 826.90; and (3) Section 826.100. Public employers should take note of how the revised regulations may affect their compliance with FFCRA and take remedial action as necessary in order to maintain compliance the law.
“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”. In the April 1 temporary rule, the Department promulgated a definition of “health care provider” that the District Court held to be overly broad because it depended on the identity of the employer and not on any determination of the employees’ skills, role, duties, or capabilities.
As a result of the Court’s ruling, the DOL adopted a revised and more limited definition of “health care provider” that includes employees who are heath care providers under 29 C.F.R. 825.102 and 825.125, 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. (See 29 C.F.R. 826.30(c)(1).)
First, DOL revised 29 C.F.R. 826.30(c)(1)(i)(A) to define “health care provider” to include employees who fall within the definition of health care provider under 29 C.F.R. 825.102 and 825.125 (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, 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.”
For public agencies that exempted “health care providers” from the receipt of FFCRA leave, we recommend reviewing the specific skills, role, duties, or capabilities of the employees who were 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 Family and Medical Leave under Sections 826.90 and 826.100
We discuss the remaining two revisions to the temporary rule together because of the provisions’ complementary nature.
Revisions to Notice Requirements under Section 826.90
29 C.F.R. 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 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.
Revisions to Documentation Requirements under Section 826.100
29 C.F.R. 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 paid sick leave or expanded family and medical leave.
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. 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. 826.90. In other words, an employer may require that an employee who is using any leave under FFCRA – either EPSL or EFML – 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 the specific information required for each type of FFCRA leave (See 29 C.F.R. 826.100 (b)-(f)).
If you have questions about these changes in the DOL rules and how they may affect your agency’s operations, LCW attorneys are available to answer your questions.
 Many public agencies have chosen to require agency approval to use any FFCRA intermittently or have chosen not to permit it. As the DOL has chosen to not modify that regulation, agencies may continue to implement their FFCRA policies regarding use of leave intermittently as they have been doing so since the law was enacted.
 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.”