Employers Take Note: FFCRA Rules Have Changed

Posted by: Giuliana Gabriel, J.D. on Monday, August 17, 2020

On August 3, 2020, a federal district judge ruled that the U.S. Department of Labor (DOL) exceeded its authority with respect to certain paid-leave eligibility requirements when interpreting the Families First Coronavirus Response Act (FFCRA). Although the decision was issued by a federal district court in New York, employers in California should follow its interpretation until an appellate court reviews the decision or other courts weigh in on the issues. (You can read the full opinion here.)

Here are the key takeaways:

1. Employers Must Provide FFCRA Leave Even When There is No Work Available.

The court found that if an employee was not working due to a COVID-related reason as defined by the FFCRA, they are still entitled to emergency paid sick leave (ePSL) or emergency family leave (eFMLA) as applicable — even if the employer has no work available — so long as the employee is still employed by the employer. This supersedes the DOL rule which stated that an employer need not provide emergency paid sick and family leave when the employer "does not have work" for the employee.

Therefore, employers should:

  • consider whether it makes sense for their business to retain its employees and pay for FFCRA leave, or layoff/terminate employees, when there is no work available,
  • consider retroactive payment for eligible FFCRA leaves during any previous business closure or furlough, and
  • proceed with caution and consult counsel, until additional courts weigh in on this issue.

2. Employers May Only Ban Intermittent Leave When It Poses a Higher Risk of Infection.

The court also struck down the DOL's blanket rule requiring employer consent for intermittent leave (i.e., leave in separate periods of time, rather than one continuous period). Now, an employer is only permitted to reject an intermittent leave request when it correlates with a "higher risk of viral infection." Therefore, if an employee requests intermittent leave to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it. Employers are permitted to refuse intermittent leave for the other covered reasons under the FFCRA, such as when the employee is subject to a stay-at-home order or experiencing symptoms and seeking a medical diagnosis.

3. Employers May Not Impose Documentary Requirements as a Precondition to Leave.

The court further held that employers may not require employees to submit documentation, such as a doctor's note or stay-at-home order, prior to taking FFCRA leave. Therefore, employers should revise their FFCRA leave policies to the extent they require documentation as a precondition to leave. Employers should request notice and documentation from the employee "as soon as practicable."

4. The DOL's Definition of "Health Care Provider" is Too Broad.

The FFCRA states that an employer of a "health care provider" or "emergency responder" may elect to exclude such employees from FFCRA benefits. The court struck down the DOL's definition of "health care provider," finding it is too broad. The DOL conceded that its definition included an "English professor, librarian or cafeteria manager at a university with a medical school." Because the court did not provide a new definition, health care industry employers should consult counsel in determining who qualifies as a "health care provider" for purposes of exemption from the FFCRA.

What Employers Need to Know:

For now, employers should follow the court’s interpretation regarding work availability, intermittent leave, documentation requirements, and the definition of a "health care provider." Employers may refer to DOL guidance regarding all other FFCRA issues. 

Confused? CEA is here to help you navigate these murky COVID waters. Give us a call at 800.399.5331 for assistance.

 

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5 comments on "Employers Take Note: FFCRA Rules Have Changed"

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Private comment posted on August 17, 2020 at 1:04:20 pm
Jessica - Sr Vice President on August 17, 2020 at 10:57:39 am said:
The small business exemption for employers with less than 50 employees only applies to the childcare time off (commonly referred to as reason #5) provision of the FFCRA. There are requirements on how to claim the exemption outlined in the DOL FAQs.
Kayla Chamness on August 17, 2020 at 10:27:13 am said:
Clarification on exemptions- Are all employers fewer than 50 employees exempt?
Jessica - Sr Vice President on August 17, 2020 at 10:01:43 am said:
No - if the person is no longer employed, the FFCRA no longer applies.
Lorna Magnusse on August 17, 2020 at 9:54:29 am said:
Clarification on item 1 - if an employee was laid-off or temporarily furloughed with no return date and collecting unemployment are they eligible for these benefits?
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