Client Alert: Department of Labor Updates Rules for Use of Federal Paid Sick Leave and Emergency FMLA

You likely heard that, on August 3, a federal court in New York held that four distinct parts of the rules issued last spring by the Department of Labor (DOL) for working with the Federal Sick Leave and Emergency FMLA provisions were invalid as published. This week, the DOL issued revisions to the original set of rules, responding to the criticism of the Judge, in the interest of having something in effect that can be followed in the rest of the country. The takeaways of what the revisions mean for you are:

• An employee is only eligible for Federal Sick Leave or Emergency FMLA if there would be work for him/her to otherwise be doing.
• Employers retain control over requests for “intermittent” Federal Leave; but, sporadic schedules created by school closings are not considered “intermittent.”
• Employee requests for Federal Sick Leave or Emergency FMLA cannot be required in advance – only as soon as practicable.
• For health care employers, there is no longer a right to exclude all employees from these benefits simply because they work for a health care provider – it is now based on the function of the health care duties the individual employee is able to perform.

Here is a more complete description:

First, the objections the Judge had were somewhat technical in nature – part of the problem was that the DOL had not provided an acceptable explanation for some of the decisions it had made in issuing the rules. That left things open for the DOL, in some cases, to re-issuing the same words, but with a better explanation. Second, some of the Judge’s points simply needed clarification of what was probably the DOL’s original intent, just not well said.

1. To take Federal Paid Sick Leave or Emergency FMLA, there must be work to do – i.e., if the shop is closed, or the employee has been laid off, there is no work to do. Since the employee is not expected to perform services, there is no reason for “leave” to be triggered. In the original rule some aspects of the leave provision were clear, but it still left some ambiguity as to others. Employers probably assumed this to be the case; but it is now specific.

2. The standard rule stated in the original regulation was: “Subject to the conditions and applicable limits, an Employee may take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree.” The DOL explained why it wrote the rule in that manner, and said it was sticking with that basic premise; however, it did clarify one point that may come up with employees where schools have instituted shifting schedules for the students:

   For the purposes of the Families First Coronavirus Response Act (FFCRA), each day [or partial day] of a school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

   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 under § 826.50. 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. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time, and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. 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). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person. This is distinguished from the scenario where 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. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.

3. The original rule provided that “an Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA.” The revision clarifies this to “as soon as practicable” – noting that,  for Paid Sick Leave, that “may only be required after the first workday” but, for Expanded FMLA, it will generally be “prior” if the need for the leave is predictable.

4. Potentially the most significant change pertains to employers who are health care providers. Because these rights were created in response to the emergent conditions of the COVID-19 epidemic, Congress recognized that it would be counterproductive to foster a program in which health care providers would not come to work. So, the original rule allowed health care providers to categorically exclude employees, saying: “Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, . . . ”. The fundamental shift in the new rule is this: “It is not enough that an employee works for an entity that provides health care services."

   Now, the employees who may be exempted are either direct health care providers (e.g., doctors, dentists, nurse practitioners, etc.) or employees “capable of providing health care services, meaning he or she is 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” (e.g., nurses, medical technicians). The rule expressly extends this potential exemption to others who are part of the care-providing team:

   (A) Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.

   (B) Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.

   (C) Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.

   (D) Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

   But, the rule expressly excludes from exemption other individuals who, although employees of a health care provider, are not providing health care services, “even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel,cooks, food services workers, records managers, consultants, and billers."

   Health care employers who have been taking an “all employees are exempt” approach to this provision up until now should consider reviewing this nuance and reassessing whether there are ancillary staff members who should be entitled to coverage under the Federal leave laws, at least through the end of this year when the law is scheduled to sunset.

For over 100 years Brouse McDowell has assisted clients in getting through difficult times and helping them solve problems. We have extensive experience in protecting employees, instilling customer confidence, and leveraging business opportunities. Do not hesitate to reach out to one of our attorneys for an opinion and to help you get through this.