DOL Responds to NY Federal Judge with FFCRA Revisions
As you may recall, my blog post here at the beginning of August 2020 discussed a case out of New York where a Federal Judge struck down portions of the Department of Labor’s Families First Coronavirus Response Act (FFCRA) regulations. In the State of New York v. United States Department of Labor, et al., the State of New York claimed several features of the DOL’s Final Rule exceeded the agency’s authority under the FFCRA statute. The Department of Labor fiercely argued they had not exceeded their authority as allowed by the FFCRA but with the Court’s ruling, there were a number of ways in which the Department of Labor could have responded. In a response to that ruling, the DOL has chosen to both combine standing by their original regulations and also make some revisions which includes the revision to the broad definition of “healthcare provider.”
So let’s discuss how the Department of Labor responded to the parts of the FFCRA regulations that the New York Federal Court targeted as overreaching.
(1) the Health Care Provider definition
As a reminder, the following was the original regulations setting forth the DOL definition of health care provider which was interpreted by the New York federal Court and others as overbroad,
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 any 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.
This definition includes 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. This also includes 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. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.
In the now revised regulations, the DOL has provided for a revised definition,
(a) employees that meet the definition of “health care provider” under the Family and Medical Leave Act (FMLA), or
(b) employees whose position is to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
(2) Intermittent Leave
The New York Court stated the DOL was overreaching by having the requirement that employees obtain consent from the employer for intermittent leave for certain reasons. The DOL had limited intermittent leave in certain circumstances, yet the Court did not agree that the DOL explained why employer consent is needed.
The DOL has doubled down on this reaffirming that employees must have their employer’s approval to take intermittent FFCRA leave.
(3) The Work Requirement
The New York Court stated the DOL was overreaching by having the DOL’s requirement that FFCRA leave is available only where the employee had work available to be performed. This would likely be an issue in the circumstance as to whether employers were to provide FFCRA leave to employees that were temporary laid off or furloughed employees.
The DOL has doubled down on this reaffirming that employees may only take FFCRA leave when work is actually available to them.
(4) Timing to Provide Employer Documentation
The New York Court stated the DOL was overreaching by having related to the timing of employee providing documentation supporting the need for FFCRA leave. This speaks to the guidance that obligated employees to provide documentation to the Employer related to leave under the FFCRA prior to taking leave and the Court found this inconsistent with the FFCRA notice provisions.
The DOL clarified this requirement by stating that employees should provide documentation as soon as possible to support their need for FFCRA leave.
In all of these areas above, the Department of Labor has taken a step towards clarification or compromise in an attempt to respond to the ruling out of the federal court in New York.
“As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever,” said Wage and Hour Administrator Cheryl Stanton. “Today’s updates respond to this evolving situation and address some of the challenges the American workforce faces. Our continuing robust response to this pandemic balances support for workers and employers alike, and remains our priority.”
Click here to check out the DOL press release and other related links.