SUMMARY
Updated September 17, 2020. On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”)[1] implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court of the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule. The revised Rule: (i) affirmed that FFCRA leave may only be taken if the employee has work from which to take leave; (ii) affirmed that, where intermittent FFCRA leave is permitted, an employee must obtain employer approval; (iii) revised the definition of “health care provider” to be consistent with the Family and Medical Leave Act (“FMLA”); (iv) clarified that an employee should provide to its employer information supporting his or her need for leave as soon as practicable; and (v) corrected an inconsistency regarding when an employee may be required to give notice of his or her intention to take leave under the FFCRA. The revised Rule became effective upon publication. These updates are incorporated into this memorandum.
Updated August 7, 2020. On August 3, 2020, the Southern District of New York issued a decision in New York v. U.S. Dep’t of Labor, No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020) (Oetken, J.) that vacated certain provisions of the DOL’s Rule[2] implementing the provisions of the FFCRA. Specifically, the decision vacated provisions of the Rule that (i) prohibited employees from taking leave if an employer “does not have work” for the employee; (ii) defined “health care providers”; (iii) required employer consent for taking intermittent leave; and (iv) required employees to provide documentation related to their leave prior to taking that leave. The remaining provisions of the Rule are unaffected by the Court’s decision. Notably, the Court was silent on whether its decision applies to jurisdictions other than the Southern District of New York. The decision has been incorporated into this memorandum.
Updated April 22, 2020. On April 20, 2020, the DOL announced the end of its temporary period of non-enforcement of the leave provisions of the FFCRA.
On April 1, 2020, the day that the FFCRA took effect, the DOL posted a “temporary rule” issuing implementing regulations for the FFCRA’s leave provisions.[3] On April 6, 2020, the DOL published a revised version of that temporary rule in the Federal Register.[4] On April 10, 2020, the DOL published a “correction notice” to make certain “correction[s] and correcting amendment[s]” to the previously published temporary rule.[5] The temporary rule, as amended, became operational as of the date of its initial posting, April 1, 2020, and expires on December 31, 2020—the same day as the FFCRA leave provisions.
Previously, the DOL had issued guidance on the FFCRA’s leave provisions, including in the form of a Questions and Answers document. The Rule provides new clarifications and expands upon that guidance. Below is a summary of the Rule’s key takeaways for private employers who are covered by the FFCRA’s leave provisions (i.e., employers who have fewer than 500 U.S. employees at the time an employee’s leave is taken).
BACKGROUND
On March 18, 2020, Congress passed the FFCRA, the second emergency legislation adopted in response to COVID-19. The FFCRA was amended in part on March 27, 2020 by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), the third emergency federal legislation adopted in response to COVID-19. Our memorandum to clients regarding the enactment of the FFCRA is available here, and our memorandum to clients covering the CARES Act amendments to the FFCRA’s leave and tax provisions is available here.
The FFCRA enacted (1) the Emergency Paid Sick Leave Act (the “Sick Leave Act”) and (2) the Emergency Family and Medical Leave Expansion Act (“Expansion Act” and, together with the Sick Leave Act, the “Acts”). The Sick Leave Act is the first ever federal paid sick leave mandate for private sector employers, and the Expansion Act temporarily amends the FMLA. The Acts apply to private employers with fewer than 500 U.S. employees and to public employers. The Acts became effective on April 1, 2020 and apply to eligible leave taken between April 1 and December 31, 2020. The Acts grant the Secretary of Labor the authority to issue regulations necessary to carry out the purposes of, and to ensure consistency between, the Acts.
Sick Leave Act. The Sick Leave Act, as implemented by the Rule, requires a covered employer to provide an employee with up to two weeks of paid sick leave for one or more of six reasons related to COVID-19. An employer is required to provide paid sick leave to an employee at the greater of the employee’s regular rate of pay or the applicable federal, state, or local minimum wage if the employee is unable to work because the employee is (1) subject to a federal, state, or local quarantine or isolation order related to COVID-19, (2) complying with advice by a health care provider to self-quarantine related to COVID-19, or (3) experiencing symptoms and seeking a medical diagnosis of COVID-19. An employer is not required by the Sick Leave Act to pay an employee taking paid sick leave for these reasons more than $511 per day or $5,110 in aggregate.
In addition, an employer is required to provide paid sick leave to an employee at two-thirds the rate described above if the employee is unable to work because the employee is (4) caring for a family member who is subject to a quarantine or isolation order related to COVID-19 or complying with a health care provider’s advice to self-quarantine due to COVID-19, (5) caring for a son or daughter whose school or place of care is closed or care provider is unavailable due to COVID-19, or (6) experiencing “any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.” An employer is not required by the Sick Leave Act to pay an employee taking paid sick leave for these reasons more than $200 per day or $2,000 in aggregate.
Expansion Act. The Expansion Act, as implemented by the Rule, requires a covered employer to provide an eligible employee with up to 12 weeks of leave if the employee is unable to work because the employee is caring for a son or daughter whose school or place of care is closed or care provider is unavailable due to COVID-19. An employer is not required to pay an employee for the first two weeks of child care leave under the Expansion Act. After the first two weeks, an employer is required to provide paid leave to an employee at two-thirds of the employee’s regular rate of pay, based on the number of hours the employee would normally work. An employer is not required by the Expansion Act to pay an employee taking child care leave under the Expansion Act more than $200 per day or $10,000 in aggregate.
Prior Paid Leave Related to COVID-19. The paid leave provisions of the FFCRA are not retroactive. An employer who provided an employee paid leave prior to April 1, 2020 for any reason, including those set forth in the FFCRA, is still required to provide that employee the leave required under the FFCRA.[6]
Non-Enforcement Period. Although the leave provisions of the FFCRA became effective on April 1, 2020, the Wage and Hour Division will observe a “temporary period of non-enforcement” through April 17, 2020, provided that the employer made “reasonable, good faith efforts” to comply with the FFCRA.[7] On April 20, 2020, the DOL announced the end of its temporary period of non-enforcement.
DOL’s Guidance. The DOL issued guidance regarding the leave provisions of the FFCRA before it issued the Rule, including in a Questions and Answers document, which it has continued to update. Our posts covering the DOL’s Questions and Answers are available here: Part I, Part II, Part III, and Part IV. Additionally, our post on the DOL’s COVID-19 Guidance on FLSA, FMLA, and FFCRA Leave is available here.
Challenges to the Rule and DOL’s Guidance. On April 1, 2020, Senator Patty Murray (Ranking Member, Senate Committee on Health, Education, Labor, and Pensions) and Representative Rose DeLauro (Chair, House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies) wrote a letter to the Secretary of Labor (the “April 1, 2020 Letter”), disagreeing with certain aspects of the DOL’s previously issued guidance, “request[ing] [that] DOL immediately revise its [guidance] materials in accord with the text and congressional intent of the FFCRA,” and asking that such revisions be reflected in “any regulations DOL promulgates.”
Similarly, on April 14, 2020, the New York Attorney General filed a lawsuit on behalf of the State of New York against the DOL and the Secretary of Labor (the “Complaint”) in the U.S. District Court for the Southern District of New York (the “Court”), alleging that the Rule “is contrary to the text of the FFCRA and exceeds the authority delegated by Congress by authorizing unsupported exclusions from employee eligibility, and by inventing new restrictions and burdens on employees that have no support in the statute’s text.”[8] Specifically, and similar to the arguments made in the April 1, 2020 Letter, the Complaint alleges that the Rule violates the FFCRA and exceeds the DOL’s authority under the FFCRA by: (1) “unlawfully authoriz[ing]” an employer to deny FFCRA leave to an employee if the employer “unilaterally determin[es]” that it does not have work for the employee to do;[9] (2) defining “health care provider” too broadly for employee exclusion purposes;[10] (3) placing restrictions on intermittent leave, including by granting an employer the ability to deny intermittent leave;[11] and (4) imposing “documentation requirements on workers as a precondition” of taking FFCRA leave.[12] The New York Attorney General requested in the Complaint and in a separately filed motion for summary judgment that the Court sever, vacate, and set aside the challenged provisions of the Rule.[13]
On August 3, 2020, the Court issued a decision in the above-captioned case, granting in substantial part New York’s motion for summary judgment. First, the Court vacated a provision of the Rule that excluded employees from receiving FFCRA leave benefits if the employer “does not have work” for the employee. The Court reasoned that this work-availability requirement failed to satisfy step two of the Chevron framework largely because the DOL’s “barebones explanation” for the requirement was “patently deficient.”[14] Second, the Court vacated the DOL’s expansive definition of “health care providers” that may be excluded from the FFCRA leave provisions because the FFCRA statutory language “unambiguously forecloses the . . . Rule’s definition” under the Chevron framework. Under the DOL’s definition, excluded “health care providers” could have covered “anyone employed” at a wide variety of facilities or institutions that provide health care services, as well as any “individual employed by an entity that contracts with any of these institutions . . . to provide services or to maintain the operation of the facility.” Thus, even an “English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care providers’ under the Rule.”[15] Third, the Court vacated a provision of the Rule permitting employees to take intermittent FFCRA leave “only if the Employer and Employee agree,” based on the Court’s finding that under Chevron, the Rule was “entirely unreasoned” and “utterly fail[ed] to explain why employer consent is required.”[16] Finally, the Court vacated part of the Rule requiring employees to provide documentation in support of the employee’s FFCRA leave as a precondition to taking that leave—such as the reason for leave, the duration of the requested leave, and the authority for the isolation or quarantine order qualifying them for leave—finding that such a requirement is “more onerous than the unambiguous statutory scheme Congress enacted.”[17] The Court allowed the remainder of the Rule to stand, and it did not address whether the decision is limited to the Southern District of New York or whether it applies nationally. Litigants in other jurisdictions will, however, be able to cite this decision as persuasive authority. It remains to be seen whether the DOL will revise the Rule to comply with this decision, or appeal the decision.
On September 16, 2020, the DOL published updates to its Rule in response to the District Court’s opinion.[18] First, the Rule reaffirmed that an employee may take FFCRA leave “only to the extent that any qualifying reason is a but-for cause of his or her inability to work.”[19] The DOL agreed with the District Court “that there is no basis, statutory or otherwise, to apply the work-availability requirement only to some of the qualifying reasons for FFCRA leave,” and amended its regulation to reflect its intent “that an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform,” and clarified that this work-availability requirement applies to all qualifying reasons for FFCRA leave.[20] Second, the Rule reaffirmed the Rule’s April 1 position that employer approval is needed to take intermittent FFCRA leave “in all situations in which intermittent FFCRA leave is permitted.”[21] Third, the Rule revised 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 that are integrated with and necessary to the provision of such care which, if not provided, would adversely impact patient care.”[22] The FMLA defines health care provider as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices,” or “any other person determined by the [DOL] to be capable of providing health care services.”[23] Fourth, the DOL amended its regulation to clarify that employees need not provide supporting documentation prior to taking FFCRA leave, but rather, “as soon as practicable.”[24] Finally, the Rule clarified that advanced notice of leave under the Expansion Act “is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave.”[25]
Please Download the Full Memo
[1] U.S. Department of Labor, Wage and Hour Division, Paid Leave Under the Families First Coronavirus Response Act (effective date Sept. 16, 2020, publication date Sept. 16, 2020), available at https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act.
[2] U.S. Department of Labor, Wage and Hour Division, Paid Leave Under the Families First Coronavirus Response Act, 85 Fed. Reg. 19,326 (effective date Apr. 2, 2020, publication date Apr. 6, 2020), available at https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act.
[3] U.S. Department of Labor, Wage and Hour Division, News Release No. 20-562-NAT: U.S. Department of Labor Announces New Paid Sick Leave and Expanded Family and Medical Leave Implementation (Apr. 1, 2020), available at https://www.dol.gov/newsroom/releases/whd/whd20200401.
[4] U.S. Department of Labor, Wage and Hour Division, Paid Leave Under the Families First Coronavirus Response Act, 85 Fed. Reg. 19,326 (effective date Apr. 2, 2020, publication date Apr. 6, 2020), available at https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act.
[5] U.S. Department of Labor, Wage and Hour Division, Paid Leave Under the Families First Coronavirus Response Act; Correction, 85 Fed. Reg. 20,156 (effective date Apr. 10, 2020, publication date Apr. 10, 2020), available at https://www.federalregister.gov/documents/2020/04/10/2020-07711/paid-leave-under-the-families-first-coronavirus-response-act-correction.
[6] 29 C.F.R. § 826.160(a)(2). In addition, an employer is not required by the FFCRA to provide retroactive compensation to an employee who took unpaid or partially paid leave prior to April 1, 2020, even if such leave was taken for COVID-19-related reasons. Id.
[7] U.S. Department of Labor. Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA), March 24, 2020 (Field Assistance Bulletin No. 2020-1), available at https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1.
[8] Compl. at ¶ 60, New York v. U.S. Dep’t of Labor, 20-cv-03020, ECF No. 1 (S.D.N.Y. Apr. 14, 2020).
[9] Id. at ¶ 68.
[10] Id. at ¶¶ 75–77.
[11] Id. at ¶¶ 82, 86.
[12] Id. at ¶ 92.
[13] Id. at 28 (Prayer for Relief); see also Pl.’s Summ. J. Mem., New York v. U.S. Dep’t of Labor, 20-cv-03020, ECF No. 4 (S.D.N.Y. Apr. 14, 2020).
[14] Opinion and Order, New York v. U.S. Dep’t of Labor, 20-cv-03020, ECF No. 37 at 11–17 (S.D.N.Y. Aug. 3, 2020).
[15] Id. at 17–19.
[16] Id. at 20–23.
[17] Id. at 23–24.
[18] U.S. Department of Labor, Wage and Hour Division, Paid Leave Under the Families First Coronavirus Response Act (effective date Sept. 16, 2020, publication date Sept. 16, 2020), available at https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act.
[19] Id.
[20] Id.
[21] Id.
[22] U.S. Department of Labor, Wage and Hour Division, News Release No. 20-1728-NAT U.S. Department of Labor Revises Regulations to Clarify Paid Leave Requirements under the Families First Coronavirus Response Act (September 11, 2020), available at https://www.dol.gov/newsroom/releases/whd/whd20200911-2.
[23] 29 C.F.R. § 825.125.
[24] U.S. Department of Labor, Wage and Hour Division, Paid Leave Under the Families First Coronavirus Response Act (effective date Sept. 16, 2020, publication date Sept. 16, 2020), available at https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act.
[25] Id.