Originally published by Robert G. Chadwick, Jr..
By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT
As explained in an earlier post on this blog, the Families First Coronavirus Response Act (“FFCRA”) remains effective until Dec. 31, 2020. Accordingly, two major provisions of the Act remain applicable to employers with fewer than 500 employees.
Emergency Family And Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) expanded the Family & Medical Leave Act (“FMLA”) to cover employees who are unable to work because they must care for a dependent child due to COVID-19. The EFMLEA provides that, “[i]n any case where the need for [leave] is foreseeable, an employee shall provide the employer which such notice of leave as is practicable.”
The EFMLEA, however, provides that an employer of “an employee who is a health care provider or emergency responder may elect to exclude such employee” from the benefits provided by the EFMLEA. The FMLA defines “health care provider” as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate),” or “any other person determined by the Secretary [of Labor] to be capable of providing health care services.”
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act (“EPSLA”) provides paid sick leave to employees with one of six qualifying COVID-19-related conditions. These conditions include that the employee:
- “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”;
- “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 seeking a medical diagnosis”;
- “is caring for an individual subject” to a quarantine or isolation order by the government or a health care provider;
- is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or
- “is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.”
The EPSLA provides that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”
In parallel to the EFMLEA’s exemption for health care providers, under the EPSLA, an employer may deny leave to an employee with a qualifying condition if the employee “is a health care provider or an emergency responder.” The Act provides that “health care provider” has the same meaning given that term in the FMLA, and that the Secretary of Labor “may issue regulations to exclude certain health care providers and emergency responders from the definition of employee.”
DEPARTMENT OF LABOR FINAL RULE
On April 1, 2020, the U.S. Department of Labor (“DOL”) promulgated its Final Rule implementing the FFCRA. Four provisions of the Final Rule, however, differ from the statutory language of FFCRA.
Work Availability Requirement
The Final Rule excludes from the benefits provided by the EFMLEA and EPSLA employees whose employers “do[] not have work” for them.
Definition of “Health Care Provider”
In contract with the restrictive definition of the FMLA, the Final Rule defines a “health care provider” as:
anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or an similar institution, employer or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions
as well as
any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatments.
Intermittent Leave
Although the FFCRA does not address intermittent leave, the Final Rule permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods or time, rather than one continuous period) only if the Employer and Employee agree.”
Document Requirements
Unlike the FFCRA, the Final Rule requires that employees submit to their employer, “prior to taking [FFCRA] leave,” documentation indicating, inter alia, their reason for leave, the duration of requested leave, and, when relevant, the authority for the isolation or quarantine order qualifying them for leave.
STATE OF NEW YORK v. DOL
Alleging that the Final Rule exceeded the agency’s authority under the FFCRA, the State of New York filed suit against the DOL in the U.S. District Court for the Southern District of New York.
On Aug. 3, 2020, the Court entered an Opinion and Order granting in part, and denying in part, the State of New York’s motion for summary judgment. The Court found the four provisions of the Final Rule set forth above to be inconsistent with the FFCRA, and therefore void. As to intermittent leave, however, the Court allows the Final Rule to remain enforceable to the extent it bans intermittent leave based on qualifying conditions that implicate an employee’s risk of viral transmission.
TAKEAWAY AND UNRESOLVED QUESTIONS
It is certainly within the right of the DOL to appeal the Aug. 3rd Order to the Second Circuit. Until the Order is stayed, however, employers are advised to follow the FFCRA itself, rather than the language of the Final Rule, as to the four provisions voided by the Court.
But what of the four-month interim period between the April 1st effective date of the Final Rule and the Aug. 3rd Order? Many decisions have already been made by employers in reliance upon the guidance provided by the Final Rule. Unfortunately, the availability of a “good faith” defense to alleged violations of the FFCRA is an unresolved question which has yet to be addressed by the courts. In the meantime, the Aug. 3rd Order is likely to spark at least some suits alleging that employers were obligated to follow the FFCRA, and not the Final Rule, in their leave decisions.
Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com
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