On September 11, 2020, the U.S. Department of Labor (DOL) partially ended the mystery of when and how it would respond to the August 3, 2020, decision from the United States District Court for the Southern District of New York in which the court—stating that the DOL had “jumped the rail”—struck down several provisions of the DOL’s final rule implementing the emergency family leave and paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA). Specifically, the DOL issued a temporary rule that is scheduled to be published in the Federal Register on September 16, 2020, and that revises several portions of the final rule that the DOL issued on April 1, 2020. The DOL has also updated its Families First Coronavirus Response Act: Questions and Answers to reflect the revised temporary rule.

The federal district court struck down the DOL’s April 1, 2020, regulations regarding: (1) the requirement that employers actually have work available for employees in order for the employees to be eligible for leave; (2) the broad definition of “health care provider”; (3) the requirement that employees obtain employer approval for intermittent leave; and (4) the requirement that employees provide documentation prior to taking FFCRA leave. The court created uncertainty about the geographic reach of its decision, which left open the question as to what extent employers outside the court’s district needed to comply with the decision.

The DOL still has until October 2, 2020, to appeal the court’s decision, and its issuance of the temporary rule does not foreclose an appeal. However, the DOL’s revisions make clear how it will interpret the FFCRA through the law’s December 31, 2020, expiration date. Specifically, the DOL has reaffirmed its original interpretation of the FFCRA in large part and conceded some ground to the district court, primarily in the definition of “health care provider.”

In its 53-page temporary rule, the DOL addresses the following:

• The DOL reaffirms the requirement that employees may take FFCRA leave only if the employer has work available for the employees.

In its decision, the court held that the FFCRA itself was ambiguous in referring to the reasons an employee is unable to work or telework, and the court concluded that the DOL’s work-availability requirement was invalid for two reasons: (1) the DOL’s explicit application of the requirement to only three of the six qualifying reasons for taking leave under the FFCRA’s paid sick leave provisions was “unreasoned” and inconsistent with the statute’s text; and (2) the DOL did not sufficiently explain the reason for imposing the work-availability requirement.

In the revised temporary rule, the DOL states that it has “carefully considered the District Court’s opinion and … explain[ed] why it continues to interpret the FFCRA to [require] … work-availability … for all qualifying reasons for leave”—and why it has further expanded its interpretation “to explicitly include the work-availability requirement in all qualifying reasons for leave.” (Emphasis added.)

The DOL states that “‘[l]eave’ is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.” The DOL points out that removing the availability of the work requirement would lead to an illogical result as follows:

Typically, if an employer closes its business and furloughs its workers, none of those employees would receive paychecks during the closure or furlough period because there is no paid work to perform. But if an employee with a qualifying reason could take FFCRA leave even when there is no work, he or she could take FFCRA leave, potentially for many weeks, even when the employer closes its business and furloughs its workers. The employee on FFCRA leave would continue to be paid during this period, while his or her co-workers who do not have a qualifying reason for taking FFCRA leave would not. The Department does not believe Congress intended such an illogical result.

The DOL cautions that its revised interpretation does not permit an employer to avoid granting FFCRA leave by “mak[ing] work unavailable in an effort to deny FFCRA leave because altering an employee’s schedule in an adverse manner because that employee requests or takes FFCRA leave may be impermissible retaliation.” The DOL also clarifies that work unavailability may be due to situations such as an employer’s ceasing operations at the employee’s worksite or furloughing the employee due to a downturn in business.

The DOL states the following:

Against this backdrop, the Department interprets the FFCRA’s paid sick leave and emergency family and medical leave provisions to grant relief to employers and employees where employees cannot work because of the enumerated reasons for leave, but not where employees cannot work for other reasons, in particular the unavailability of work from the employer.

The practical result of the DOL’s temporary rule on this subject is that the DOL does not cede any ground to the district court and, instead, reaffirms its position that in order for employees to take leave under the FFCRA—for any reason—the employer must have work available for the employee. If the employer does not have work available because, for instance, it has laid off or furloughed workers, then employees are not entitled to FFCRA leave.

• The DOL reaffirms and provides additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.

Consistent with the DOL’s approach to the work-availability requirement, the temporary rule also reaffirms the DOL’s position that employer approval is required for employees to take intermittent leave under the FFCRA. In its decision, the court held that the DOL had failed to explain adequately its rationale that intermittent leave could be taken only with employer consent. In reaffirming its position, the DOL reasoned that its approach is “consistent with longstanding [Family and Medical Leave Act (FMLA)] principles governing intermittent leave … [which] is leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period of leave taken for a single qualifying reason.” The DOL additionally explained that, under 29 C.F.R. § 826.20(a)(i)–(iv) and (vi), the regulations do not permit employees who take paid sick leave to return to work intermittently at a worksite because those employees present a risk of spreading COVID-19 to coworkers, but employees who take paid sick leave for those reasons are permitted to telework—if such telework is available—“on an intermittent basis without posing the risk of spreading the contagion at the worksite or being infected themselves.”

Very importantly, the DOL concluded that employer approval is not required when employees take FFCRA leave in full-day increments to care for children whose schools are operating on a hybrid-attendance basis (e.g., alternating day, half-day, or alternating week) because such leave is not intermittent. “Under the FFCRA,” the DOL explained, “intermittent leave is not needed because the school literally closes … and opens repeatedly.” With the DOL’s additional explanation in the temporary rule, these hybrid-attendance models do not implicate intermittent leave at all and, instead, are a series of different leaves under the FFCRA. In all other circumstances, the DOL has reaffirmed its position that employer approval is required for employees to take FFCRA leave intermittently.

• The DOL revises the definition of “health care provider” to include only employees who meet the definition of that term under the FMLA regulations or who are “‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,’” which, if not provided, would adversely impact patient care.

The DOL’s temporary rule cedes to the district court the most with respect to the court’s position regarding health care providers’ eligibility for FFCRA leave. Under the FFCRA, an employer can exclude health care providers from paid sick leave and expanded family medical leave entitlements. The district court strongly criticized what it characterized as the DOL’s overly broad view of “health care provider” and opined that the DOL should focus on the nature of the employee’s job and not on the employer’s identity. The court criticized the DOL’s rule for sweeping in certain healthcare facility employees “whose roles bear no nexus whatsoever to the provision of healthcare services.” (Emphasis in the original.)

The DOL has revised “health care provider” to include physicians and others who make medical diagnoses. As reflected in the temporary rule and the DOL’s updated Families First Coronavirus Response Act: Questions and Answers, “health care providers” include licensed doctors of medicine, nurse practitioners, or any other health care providers who may issue an FMLA medical certification. In addition, the definition includes those who are “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” and that, “if not provided, would adversely impact patient care.” Finally, the “health care provider” definition includes employees who do not provide direct health care services but who are otherwise integrated into and necessary to providing those services. The DOL includes as an example of this final category a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition.

The temporary rule also identifies positions that are not health care providers. This nonexhaustive list includes “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.” The DOL considers these positions too attenuated to patient care.

The DOL’s revised temporary rule includes specific examples of diagnostic services, preventive services, treatment services, and other services that are integrated with and necessary to the provision of patient care.

“Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.”

“Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.”

“Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering or prescribed medication, physical therapy, and providing or assisting in breathing treatments.”

The “other services” category includes “bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

• The DOL clarifies that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable and corrects an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

As with the “health care provider” revision, the DOL has ceded a bit of ground to the court around what and when employees must provide notice to their employers of the need for leave under the FFCRA. Specifically, the DOL’s temporary rule makes clear that documentation supporting requests for leave under the FFCRA need not be given in advance of taking such leave “but rather may be given as soon as practicable, which in most cases will be when the employee provides notice” of the need for FFCRA leave. The DOL’s revision also corrects an inconsistency regarding the timing of notice for employees who take expanded family and medical leave. Specifically, the DOL’s temporary rule provides that “an employer may require an employee to furnish as soon as practicable: (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. The employer also may require the employee to furnish the information set forth in § 826.100(b)-(f) at the same time” regarding a qualifying COVID-19–related reason to take paid sick leave.

In the DOL’s recent updates to its FFCRA Questions and Answers, the DOL made clear its position that the United States District Court for the Southern District of New York’s decision applies nationwide. At this point, it appears from the DOL’s temporary rule that it intends to oppose—likely through an application for stay and an appeal—part of the United States District Court for the Southern District of New York’s decision. With the DOL’s issuance of the temporary rule, employers operating outside the Southern District of New York likely have a good-faith basis (and ultimately a strong defense) for adhering to the DOL’s ongoing and revised interpretation of the FFCRA, while employers in the Southern District of New York may want to consider strictly adhering to the court’s decision.