The Department of Labor has issued revisions and clarifications to its FFCRA Temporary Rule in response to the New York federal court’s decision vacating some of the provisions of the earlier version of the Rule.

Summary of Revisions.

In its revised rule and clarifications, the DOL:

• reaffirms that the emergency paid sick leave and expanded family and medical leave under FFCRA may be taken only if the employee has work from which to take leave. (The temporary rule also clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.)
• reaffirms that an employee must obtain the employer’s approval to take emergency paid sick leave or expanded family and medical leave intermittently, but explains the difference between intermittent and additional requests for leave.
• revises the definition of “health care provider” to mean employees who are health care providers under 29 CFR 825.102 and 825.125 and other employees 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, if not provided, would adversely impact patient care. See our separate post about this.
• revises § 826.100 to clarify that the information the employee must give the employer to support the need for leave should be provided to the employer as soon as practicable.
• revises § 826.90 to clarify that notice of expanded family and medical leave must be provided as soon as practicable.

Leave is only available if a qualifying reason was the but for cause of the employee’s inability to work.

The DOL took issue with the reasoning of the district court and reaffirmed that all leave under the FFCRA is only available if the employer has work available for the employee. In other words, an employee may take paid sick leave or expanded family and medical leave only to the extent that a qualifying reason for such leave is a but-for cause of his or her inability to work. The DOL explained that “if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a but-for cause of the employee’s inability to work.” In support of its position, the Department stated that it “sees no textual basis or other persuasive reason to deviate from the standard meanings” of the terms “because” and “due to” which were used in the statute. It further stated that the term “leave” “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.”

DOL clarifies when leave is intermittent and must be approved by the employer.

While the Department reaffirmed that intermittent leave could only be taken with the approval of the employer, it also explained the difference between intermittent leave and consecutive requests for leave. According to the DOL, “the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.” Each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens again for the particular student. “The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).” However, if the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule, this would constitute a request for intermittent leave that would require his or her employer’s agreement.

The DOL’s revised Rule provides welcome relief and clarity to employers. Although it is not immune to further legal challenge, the DOL appears to have addressed the issues raised by the New York court. Employers are nonetheless wise to seek legal counsel with respect to how the various FFCRA requirements might apply in an individual circumstance.

Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.