DOL Issues Revised FFCRA Regulations: Three Takeaways for Employers

On September 11, 2020, the Department of Labor (DOL) issued revised regulations, scheduled to go into effect on September 16, 2020, regarding the Emergency Paid Sick Leave and Expanded Family and Medical Leave requirements under the Families First Coronavirus Response Act (FFCRA). In response to an August 3, 2020 decision of the U.S. District Court of the Southern District of New York (District Court) declaring certain FFCRA regulations to be invalid, the DOL’s revised regulations mostly reaffirm its prior regulations and provide additional guidance.

Unfortunately (for employers), the DOL has been actively pursuing employees’ individual and collective claims based on the FFCRA. Considering the DOL’s active approach to enforcement, employers need practical guidance now more than ever.

To support employers striving for full compliance, here are three takeaways from the FFCRA’s new regulations:

1. Employers may require employees to provide documentation of their FFCRA leaves at (or around) the same time they provide notice of their FFCRA leave, not “prior to” as allowed by the DOL’s earlier regulations. Background:

In the DOL’s earlier regulations released on April 1, 2020, employers were permitted to require documentation “prior to” employees taking FFCRA leaves. Employers were, however, only permitted to require notification of FFCRA leaves either “after the first workday (or portion thereof)” for Emergency Paid Sick Leave, or “as is practicable” for Expanded Family and Medical Leave. In its opinion, the District Court noted a perceived contradiction between the documentation and notice requirements.

New Regulations:

Under its new regulations, the DOL clarifies that documentation may not be required “prior to” taking FFCRA leaves. Instead, employees may be required to provide documentation “as soon as practicable,” which, in most cases, will be when the employee provides notice of his or her leave.
The DOL provides the following example of its new notice requirements: “If an employee learns on Monday morning before work that his or her child’s school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.”

Takeaway:

Employers may (and should) continue to request documentation in support of FFCRA leaves. For Emergency Paid Sick Leave, documentation may be required after the employee’s first workday (or partial workday) of leave. For Expanded Family and Medical Leave, documentation may be required when the employee learns of the need for leave. As to all FFCRA leaves, employers should require employees to furnish the following documentation, in addition to documentation that may be necessary for the employee’s specific qualifying reason: (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.

2. Employees are not entitled to FFCRA leave during furlough or days when work is not available.

Background:

In its April 1, 2020 regulations, the DOL intended to provide that employees are only entitled to FFCRA leave if the qualifying reason is the actual reason why the employee is unable to work. For example, if an employee were advised by his or her doctor to self-quarantine while the employee was otherwise furloughed, the DOL’s regulations indicated that the employee would not be entitled to FFCRA leave. The DOL did not, however, explicitly state the work-availability requirement when referring to certain qualifying reasons. Contrary to the DOL’s understanding of employee “leave,” the District Court indicated that FFCRA leaves may be available to employees who are not otherwise required to work.

New Regulations:

In response to the District Court’s opinion, the DOL revised its regulations to explicitly include the work availability requirement for employees to be entitled to FFCRA leaves. As the basis for its revision, the DOL relied on long-standing principles of “leave” being an absence from work, which requires the employee to be expected or required to report to work in the first place.

Takeaway:

Employees are only entitled to FFCRA leaves when they are expected or required to report to work. In practice, this means that employers do not need to provide paid leave to employees on furlough or when work is otherwise unavailable. Please note, however, nothing in the new regulation changes employers’ general obligations under the Fair Labor Standards Act (FLSA). As required under the FLSA, “exempt” employees must be paid their full salary for any week that work is performed, notwithstanding allowable deductions.

3. Employers may, at their option, offer intermittent FFCRA leaves to employees who are either (1) teleworking or (2) taking leave based on a school closure or childcare unavailability.

Background:

Under the Family and Medical Leave Act of 1993 (FMLA), “intermittent leave” refers to leaves taken in separate periods of time for a single illness or injury, as opposed to one continuous period. According to the FMLA, employees may take leave intermittently, but only under certain circumstances.

The FFCRA’s Expanded Family and Medical Leave (temporarily amending the FMLA) did not, however, expressly allow or deny intermittent leave. In its regulations implementing the FFCRA, the DOL required that intermittent leave, when available, can only be taken with the employer’s consent. The District Court, invalidating the DOL’s requirement for employer consent, held that the DOL did not adequately explain the basis for requiring employer consent, particularly where the employee is teleworking or when the leave is based on childcare or school unavailability.

New Regulations:

The DOL reaffirmed that employees may be eligible for intermittent leave based on a COVID-19-related school closure or childcare unavailability, but only with the employer’s consent. In response to the District Court, the DOL indicated that the FMLA has long recognized the necessity to balance an employee’s need for leave with an employer’s interest in avoiding disruptions.

As to employees requesting leave for other FFCRA-qualifying reasons, such as a doctor’s direction to quarantine, an employee who is teleworking (and not reporting to the worksite) make take intermittent leave for any of the FFCRA’s qualifying reasons as long as the employer consents. The DOL, in its reasoning, stated that the option of telework is subject to employer approval. Therefore, employers generally cannot be compelled to allow intermittent telework.

Takeaway:

At their option, employers may continue to grant or deny intermittent FFCRA for employees requesting leave due to COVID-19-related school closures or childcare unavailability. Although intermittent leave can present an administrative burden, some employers may benefit from the flexibility of allowing employees to report to the worksite or telework on an intermittent basis. Employers retain the discretion to allow (or deny) employees’ requests to telework on a continuous or intermittent basis.

Final Thoughts:
According to the EEOC’s recent guidance, employers may ask employees to request accommodations before the workplace reopens or before employees return from furlough. If you do not have an accommodations policy and procedure yet, now may be the ideal time to adopt a streamlined ADA accommodations policy and procedure.

If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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