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Changes to FFCRA Employers Need to be Aware Of

August 13, 2020

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The FFCRA applies to U.S. employers with fewer than 500 employees.   Last week a district federal court in New York overturned some provisions of the interim FFCRA rules.  These interim rules for the FFCRA were written quickly, within two weeks of the law.  However, these rules have a shelf life of 12/31/20, but given the uncertainty of the COVID-19 vaccinations, it may be extended into another year.  In the meantime, employers that are covered under these rules need to update their policies.

The interim rules that violated the law according to the district court include a rule allowing employers of health care providers to exclude a broad range of employees from the FFCRA’s benefits.  It’s a rule denying FFCRA benefits to employees who are unable to work due to FFCRA-covered reasons when the employer does not have work for those employees (for example, when the employee would be on furlough status due to a COVID-related reduction in force or furlough).  It allows for intermittent FFCRA leaves, but only if the employee and the employer agree to the leave time to be used intermittently.  It also allows employers to require documentation of the need for FFCRA leave time prior to the leave’s commencement, as opposed to as soon as practicable.

With respect to the health care provider exclusion, the  court found that many rules adopted a broad definition of “healthcare provider” with respect that employers could choose to deny leave to, among others, essentially anyone employed by a hospital, doctor’s office, healthcare center, clinic, etc. or anyone employed by an entity that contracts with a Medical Institution to provide services or maintain facility operations.  The court ruled that these rules cover employees whose roles bear “no nexus whatsoever” to the provision of healthcare services and thus are not relevant to the healthcare system’s vitality during the pandemic.  The definition is still unclear, but, for example, the exception is not likely to apply to receptionists, billing, HR, and the like.

Next, the court invalidated the rule that employees are not entitled to FFCRA leave if their employer has no work available for them, even if the lack of work is the result of a government directive such as a closure or “stay-at-home” order.  The practical aspect of this ruling is unclear.  If an employee is considered on payroll by being on unpaid leave, the FFCRA should apply.  But if the employee is furloughed and on PUA, the FFCRA should not apply.  This ruling is unclear because furloughed employees do not count as “employees” under the DOL’s FFCRA regulations but now may be eligible for FFCRA leave if the decision to furlough them is based on a closure order.  In part, this court ruling may be moot in part as any closure order was likely promulgated in the early days of the pandemic, in those times when the DOL gave a 30-day grace period before enforcing the regulation.

Further, the FFCRA statutory language is silent as to whether employees may use FFCRA leave intermittently.  The DOL essentially only allowed intermittent leave if the employer and employee agree.  Although the court upheld the situations that intermittent leave is allowed, where the use of leave intermittently would not create a risk of exposure in the workplace or for the care of children if school is closed,  it did strike down the requirement of employer consent for the leave.  Therefore, in these two situations, employers may be required to provide intermittent leave.

Finally, the court ruled that employees must provide appropriate pre-leave notice of the need for a qualifying leave. It also ruled that pre-leave documentation is not required.  Therefore, employers should not require the submission of documentation as a precondition to taking FFCRA leave.  The DOL should provide more guidance as to timing of when documentation, if necessary, should be provided by.

Employers need to update their FFCRA policies and practices to reflect the court’s order.  It may still be appealed, but right now it is good law.  The bigger issue coming up is remote school in the Fall.  The FFCRA does not provide two weeks paid leave and up to 12 weeks leave for each event that may be a trigger, but one two week paid sick leave and total 12 week leave block period, just as normal paid sick leave and FMLA would do so.  Therefore, employers should discuss with legal counsel on how to handle the Fall school issue if employees are unable to work because of childcare issues. 

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