On August 3, 2020, a federal judge in New York City surprised many by striking down a few provisions of regulations published by the United States Department of Labor (DOL) in the early days of the pandemic.  After President Trump signed the Families First Coronavirus Response Act (FFCRA) on March 18, 2020, the DOL rushed to get comprehensive regulations out to employers and employees by April 1, 2020.  In a suit brought by the State of New York, the New York federal court judge ruled that the DOL had “jumped the rail” in a few places.  The judge invalidated four key provisions of the regulations – regulations that employers have been relying upon these last few months.  

The employer community has been waiting to see the DOL’s response.  Would the DOL appeal?  Would it revise the regulations?  Would it do anything to address the holes blown in the regulations by the federal judge?  On Friday, September 11, 2020, the DOL showed its hand.  On two of the four regulations, the DOL refused to make any modifications.  Rather, in considering the federal judge’s criticism of the regulations, the DOL decided to assuage the judge’s concerns by setting forth a fuller explanation of its reasoning.   For the other two regulations, the DOL changed course and modified its position.  These new, revised regulations took effect on September 16, 2020.  

Let’s discuss each of the four regulations at issue, the judge’s August ruling, and the DOL’s response of last week.  

Availability of Work 

The DOL’s April regulation mandated that an employee needed to be missing work to qualify for leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA), the two leave laws embedded within the FFCRA. The DOL issued a regulation that was rudimentary in nature.  If the employer did not have work available to the employee, then the employee did not qualify for paid leave.  In other words, the employee had to be off work due to the pandemic.  If an employer, for example, had closed the business, then the employee’s otherwise qualifying condition, e.g., a positive test, was not the reason that the employee was off work.  The employee would need to turn to unemployment compensation for relief.  

The judge disagreed with the DOL’s reasoning.  The judge did not believe that the DOL had adequately explained why its regulation was consistent with the statute’s grant of leave rights.  The judge found the availability of work to be irrelevant.  Unfortunately, the judge’s ruling opened the door to the absurd result that the employer might have to pay benefits to an employee notwithstanding that the employee would have otherwise been off work.  

With its September 11 commentary and revised rule release, the DOL has doubled down on its position.  In a carefully crafted commentary, the DOL does not cede any ground on this point.  It notes that most leave laws require that work otherwise be available to the employee.  It remains to be seen if the DOL’s bolstered position is persuasive to the courts.  In the meantime, employers can continue to deny leave to employees who would be off work for reasons other than their qualifying condition.  

Intermittent Leave 

Employers have been dealing with intermittent leave under the FMLA for two plus decades.  Congress, in drafting the leave laws in the FFCRA, however, said not a word about intermittent leave.  It fell to the DOL to fill the gaps left by Congress.  First, the DOL, in its regulations, stated that employees who were off work due to their own medical issues, or the medical issues of someone under their care, could not take intermittent leave.  Per the DOL’s logic, an employee should not be able to come and go from the workplace if they were sick or caring for the sick.  To allow such would be against the public policy of controlling the spread of the virus.  Second, the DOL decreed that in other instances, such as a school closure, an employee could take intermittent leave, but only with the agreement of the employer.  

The federal judge agreed with the DOL on the question of intermittent leave for those who had COVID-related issues or were caring for those with issues.  The judge did not find justification, however, for the DOL allowing an employer to veto the use of intermittent leave in the event of, say, a school closure.  Thus, the judge struck down that part of the regulation.  

The DOL, in its recently released commentary, took another shot at explaining its position.  Without getting too far down into the weeds, suffice it to say, the DOL makes a compelling case.  In this writer’s opinion, the DOL addressed and answered the judge’s concerns on intermittent leave.  Until a court says otherwise, employers may continue to assert their right to refuse intermittent leave under the FFCRA if such leave hampers operations.  Where schools are closed, the question of intermittent leave will continue to come up.  On that subject, the DOL took pains to explain that a hybrid school schedule did not equate to intermittent leave.  Rather, each day of school closure was itself a new qualifying event.  Accordingly, employers should not get confused and consider such to be a type of intermittent leave that they can veto.

Health Care Providers 

Congress, in drafting the two leave laws within the FFCRA, was sloppy in its use of the phrase “health care provider.”  On the one hand, Congress wanted to borrow from the list of providers under the FMLA who could certify an employee off work.  That list included M.D.’s, D.O.’s, nurse practitioners, physician assistants, and others with a license to make diagnoses.  But Congress was also responding to concerns from health care employers as to whether they could keep the lights on at their facilities.  Accordingly, Congress delegated to the DOL the authority to craft regulations excluding certain health care providers from leave rights.  Congress did not include a separate definition for this class of “health care providers.”  The DOL responded with very robust exclusionary language.  Essentially, if an employee worked for a health care entity, then the employee could be denied leave.  

The federal judge believed that the DOL went too far with its regulation.  He did not like the identity of the employer determining whether an employee had leave rights.  He pointed out that a receptionist at a medical practice could be denied leave.  The judge believed that the DOL had strayed from the plain language of the Act.  

The DOL listened to the judge on this point.  It revised its regulation.  Rather than the identity of the employer being the guide to an exclusion, the DOL drafted new language for the definition of “health care provider.”  Under this new definition, the role of the employee is the guide on exclusion.  The employee must be involved, either directly or indirectly, in the providing of services to patients.  The employee need not be licensed or certified.  Thus, for instance, a nursing assistant could be excluded from leave.  Again, the focus is on whether the employee has been employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.  

The revised regulation specifically excludes from the definition of “health care provider” positions such as the following:  IT, building maintenance, HR, cooks, food service workers, records managers and billers.   Unfortunately, this narrower definition may create some morale issues in the workplace.  The nursing home may need a nursing assistant to remain on duty while having no option but to grant leave to a cook.  Still, it is a better landscape for covered health care employers (fewer than 500 employees) than where the federal judge left us on August 3.  

It remains to be seen whether this revised regulation, which continues to give much lee-way to health care employers, will survive further court scrutiny.  As a practical matter, however, with the FFCRA due to sunset on December 31, 2020, the courts may not have time to interfere with the DOL’s handiwork.  

Required Documentation 

The original regulation (from April) seemed to allow employers to insist on employees providing supporting documentation to employers prior to taking leave.  The federal judge pointed out that another provision of the regulation allowed employees to give notice of leave “as soon as practical”.  He invalidated the provision requiring prior submission of documentation.  The DOL so modified its regulation.  Employees are now required to give notice and supporting documentation as soon as practical.  The DOL points out that, with regard to the EFMLEA, that phrase might require an employee, who knows in advance of the need for leave, such as for a school closure, to give notice to the employer prior to taking a leave of absence.  An employer cannot, however, have a blanket policy requiring either prior notice or prior documentation. 

Summary 

These revised regulations give employers some cover on the subjects.  There are some important take-aways, however, to keep in mind.  First, there were questions in the days and weeks after the New York judge’s ruling as to the geographical reach of his ruling.  Did it have nationwide effect?  The DOL has now expressly stated in its quietly revised FAQ’s that the ruling did have nationwide effect.  In other words, the DOL was saying that it was responding to a matter of national consequence, not just a NYC issue.  Consequently, if this judge again wades into the issue, employers should pay attention to his ruling.  Second, it is unclear whether the DOL will stand pat on its revised regulations or whether it will also appeal the August 3 order of the New York judge.  It has until early October to file an appeal.  Third, employers should keep one eye on the December 31 expiration date for all of these rules, but they should also keep the other eye on Congress and whether the FFCRA leave laws are extended into 2021.  That could happen.