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Thursday, September 17, 2020

As Published in The Daily Business Review: DOL Responds: New Temporary Rule Addresses Decision Striking Down Prior Regulations

As published in the Daily Business Review | September 16, 2020

By Elizabeth P. Johnson and Lindsay M. Massillon

On Sept. 11, the Department of Labor issued a temporary rule that revises the department’s April 1 regulations implementing the Families First Coronavirus Response Act. These revisions are in direct response to the ruling by a U.S. district judge in New York invalidating certain provisions of the April 1 temporary rule that created uncertainty for employers and practitioners nationwide.

On March 18, President Donald Trump signed the FFCRA into law, granting paid leave for certain qualifying circumstances related to the coronavirus pandemic. The FFCRA created two laws that provide paid leave for employees: The Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Under the EPSLA, an employee is entitled to up to two weeks of paid leave if the employee is subject to a federal, state, or local quarantine or isolation order; has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; is experiencing symptoms of COVID-19 and is seeking a  medical diagnosis; is caring for an individual who is subject to a federal, state, or local quarantine order or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; is caring for his/her own child whose school or place of care is closed, or child care provider is unavailable due to COVID-19; or is experiencing any other substantially similar condition that may arise as specified by the Secretary of Health and Human Services.

The EFMLEA provides for an additional 10 weeks of paid leave for an eligible employee who is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19. Both provisions of the FFCRA expire Dec. 31.

On March 27, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act, which modified portions of the EPSLA and EFMLEA. The CARES Act also authorized the secretary of labor to issue regulations which, among other things, detail how the EPSLA and EFMLEA would be implemented and enforced.

On April 14, the state of New York filed suit in the Southern District of New York challenging certain provisions of the DOL’s April 1 temporary rule based on the two-step framework set forth in Chevron U.S.A. v. Natural Resources Defense Council, that analyzes whether an agency’s interpretation of law is reasonable and should be afforded deference.

On Aug. 3, the U.S. district judge ruled that four parts of the temporary rule were invalid: the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; the requirement that an employee may take FFCRA leave intermittently only with employer approval; the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and the requirement that employees who take FFCRA must provide their employers with certain documentation before taking leave. This ruling prompted the DOL to review its regulations, leading to the issuance of a new temporary rule.

What Changed

The new temporary rule, which took effect Sept. 16, responds to each of the district court’s findings, reaffirming in part and revising in part its prior regulations.

Specifically, the DOL affirms that paid sick leave and expanded family and medical leave may only be taken if the employee has work available. Under the FFCRA, an employer must provide paid leave if the employee is unable to work or telework due to a need for leave “because” of one of six qualifying reasons. The district court ruled that the work-availability requirement was inconsistently applied to the six qualifying reasons for leave and therefore was capricious and arbitrary, failing to pass muster under Chevron. The DOL clarified that its intent was to apply the work-availability requirement to all six qualifying reasons, thus eliminating the seemingly arbitrary distinction.

Moreover, the DOL defended its work-availability requirement because “leave” inherently implies that the employee would have been working but for a COVID-19-related issue — otherwise, there would be no need for an employee to take leave from work. Removing the requirement would lead to illogical results, such as an employee receiving paid leave from work while his employer’s business is closed simply because he has symptoms of COVID-19, while co-workers who do not have symptoms receive no pay.

The temporary rule also affirms the DOL’s position that employer approval is required to take intermittent FFCRA leave. The district court found that while it was reasonable to disallow intermittent leave, it was not reasonable to allow for intermittent leave only with employer consent. The court reasoned that permitting intermittent leave could result in a high-risk of transmission of the virus if an employee had symptoms of COVID-19 as the employee could be home some days, and in the workplace on other days.

However, the court determined that the agency’s requirement of employer consent seemed to defeat this public health reason and was otherwise not explained. In the new rule, the DOL points out that the FFCRA requires employer permission for telework, so it reasonably follows that employer consent be required for intermittent leave if doing so would not increase the risk of spreading COVID-19. Additionally, the DOL’s Family and Medical Leave Act regulations require agreement by the employer for the employee to take intermittent leave. Under both rationales, requiring employer consent for intermittent leave under the FFCRA is equitable.

The FFCRA permits employers to exclude employees who are “health care providers” from eligibility for leave under the EPSLA and the EFMLEA. The district court held that the definitions in the regulations were too broad and therefore, would pose “grave consequences” for employees. For example, the April 1 temporary rule includes in its definition employees of any “post-secondary educational institution offering health care instruction,” which would encompass “an English professor, librarian or cafeteria manager at a university with a medical school.”

In response, the DOL adopted a revised definition that explicitly states that the employees themselves must be capable of providing — and be employed to provide — “diagnostic, preventative, or treatment services and, if not provided, would adversely impact patient care.” The DOL also expounds on the typical locations where covered health care providers are employed and provides a nonexhaustive list of employees who are not health care providers to better clarify the employees intended to be excluded from the FFCRA.

Finally, the DOL addressed the district court’s finding that the April 1 rule imposes a more stringent precondition to leave than set out in the text of the FFCRA. The district court found that the agency’s requirement that an employee provide documentation “prior to” taking leave was inconsistent with the statute’s requirement that notice be provided “as soon as practicable.” There were also inconsistencies with the timing of notice for leave taken under the EPSLA versus the EFMLEA.

The original rule states that an employee is not required to give advance notice for leave taken under the FFCRA but may be required to provide notice after the first workday (or portion thereof) for which an employee takes leave. While this requirement is correct for leave taken under the EPSLA, it was not correct for EFMLEA leave, which requires notice as soon as practicable. The new rule draws a distinction between the notice required for EPSLA and EFMLEA, as well as explicitly states that documentation is required “as soon as practicable,” which will typically coincide with the notice requirements of Section 826.90.

Key Takeaways

In sum, employers should continue to be vigilant as the DOL continues to amend and clarify its FFCRA regulations. Since the April 1 temporary rule was issued, there have been multiple updates, including an ever-expanding “question and answer” section addressing various concerns from both employers and employees. It is likely that other challenges will be made to the DOL’s regulations which may prompt new temporary rules between now and the end of the year. While the FFCRA is only effective until Dec. 31, 2020, employers should anticipate that its provisions will be extended into 2021 as our lives continue to be affected by the pandemic.

Elizabeth P. Johnson and Lindsay M. Massillon are shareholders at Fowler White Burnett. Johnson focuses her practice on labor and employment law. Contact her at Massillon focuses her practice on labor and employment law and commercial litigation. Contact her at


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