In response to the global pandemic, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020. FFCRA created two emergency paid leave obligations for employers with 500 or less employees: (1) emergency paid sick leave which entitles employees to take up to two weeks of paid sick leave if the employee is unable to work for specific qualifying reasons related to COVID-19; and (2) expanded family and medical leave which entitles employees to take up to 12 weeks of leave, 10 of which are paid, if the employee is unable to work because they must care for their son or daughter whose school, place of care or childcare provider is closed or unavailable due to COVID-19-related reasons. These FFCRA paid leave obligations will expire on Dec. 31, 2020.
On April 1, 2020, the U.S. Department of Labor (DOL) issued a temporary rule to carry out the FFCRA’s paid leave requirements and has updated frequently asked questions to address common concerns facing employees and employers when applying FFCRA.
On April 14, 2020, the State of New York filed a suit in the United States District Court for the Southern District of New York that challenged certain portions of the temporary rule. On Aug. 3, 2020, the District Court ruled that four parts of the temporary rule were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if the employee has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of “health care provider”; and (4) the requirement that employees provide prior notice to their employers before taking leave.
In response, on Sept. 11, 2020, the DOL issued a new temporary rule that clarifies and reaffirms its FFCRA positions. The new regulations will take effect on Sept. 16, 2020.
Providing fuller explanations and carefully describing its reasoning, the DOL:
- Reaffirms that earned sick leave and the expanded family medical leave provided under the FFCRA may be taken only if the employer has work available for the employee;
- Confirms that employees may take intermittent leave under the FFCRA only with their employer’s approval;
- Amends and narrows the definition of “health care provider” (employees who may be excluded from paid leave under the FFCRA) to include only those whose duties and capabilities are directly related to providing health care services or who are employed to provide diagnostic, preventive, treatment or other services that are integrated with and necessary to the provision of patient care and if not provided would adversely impact patient care; and
- Clarifies the timeline for when an employee must provide notice of the need for leave and provide supporting documentation, effectively providing that the employee must provide the notice as soon as practicable, not necessarily prior to taking leave.
To be helpful, the DOL also updated and added to its frequently asked questions guidance.
One interesting feature is the DOL’s position that intermittent leave is not necessary when an employee’s child participates in hybrid learning where the school is operating on an alternating day schedule. The DOL found that each full day that a school is closed is “a separate reason for FFCRA leave that ends when the school opens the next day.” Under this thinking, a single day of leave is not considered intermittent and the employee will not need employer consent to take leave for that day off. However, employees will need their employer’s consent to address partial day absences if their child’s school is conducting hybrid learning, for instance, in either the morning or the afternoon.
Employment law, particularly in response to the global pandemic, is ever changing. Employers should remain vigilant and mindful of changes to respond as appropriate. For guidance in compliance, contact a Chuhak & Tecson Employment lawyer.
Client Alert authored by Jeralyn H. Baran (312 855 4613), Principal and leader of Chuhak & Tecson’s Employment practice.
This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.
