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In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11^th to formally address ongoing questions and concerns related to the COVID-19 legislation.

To recap, on August 3, 2020, a judge out of the Southern District of New York (“SDNY”) issued a decision in State of New York v. U.S. Department of Labor, challenging certain provisions of the DOL’s regulations, including the definition of “health care provider,” certain considerations regarding FFCRA leave eligibility, and employee notice requirements. A more comprehensive overview of the SDNY’s holding can be found here.

Although the SDNY’s decision was not the first legal attack on the FFCRA nor the DOL’s related regulatory provisions, the scrutiny arising from the Federal District Court was enough to prompt the DOL to reevaluate the challenged provisions.

The new DOL Final Rule, which is scheduled to take effect on Wednesday, September 16^th, does the following:

1. Addresses “Healthcare Provider” Definition and Exemption | In its new Final Rule, the DOL redefines who is encompassed within the meaning of “healthcare provider” under the FFCRA to include: (1) traditional healthcare providers under the FMLA, and (2) “other employees who are employed to provide diagnostic services, preventative services, treatment services, and other services that are integrated with and necessary to the provision of patient care.”
   
   In effect, the DOL Final Rule narrows the original FFCRA definition of “healthcare provider” as well as provides explicit examples of included professions and healthcare entities.
   
   As a practical matter, this modification will require all healthcare providers who previously invoked the “healthcare provider exemption” to revisit their parameters of use, as some employees may no longer be included within the new definition and exemption. 
   
   
2. Doubles Down on the “Work Availability” Requirement | The DOL rejected the SDNY’s holding that an employer’s ability to provide an employee with work to complete may not be considered relevant in assessing eligibility for FFCRA leave. In other words, the DOL’s original position on this issue remains unchanged — an employee is only entitled to FFCRA leave if the employer has work available for the employee, but the employee cannot perform the work due to one of the six qualifying reasons under the FFCRA.
   
   As it relates to this requirement, employers should remember that they may not make work unavailable in an effort to deny an FFCRA leave request — this action would constitute impermissible retaliation.
   
   
3. Doubles Down on Intermittent Leave Approval | In response to the SDNY’s challenge asserting that an employee may take intermittent leave without first receiving employer approval, the DOL affirmed its original position which provides that employer approval is required in order to take certain FFCRA leave intermittently. In support of this holding, the DOL reasoned that the FFCRA pre-approval requirement is consistent with longstanding FMLA principles on leave issues as it protects against disruptions in an employer’s business operations.
   
   
4. Modifies Notice and Documentation Requirements | In its holding, the SDNY challenged certain FFCRA leave notice requirements as impracticable for requiring employees to submit notice prior to taking any leave. In its new Final Rule, the DOL agreed. Accordingly, employees are now required to submit notice of FFCRA leave “as soon as practicable.” For employees taking leave as a result of a school or childcare facility closure, this means providing notice in advance. However, for circumstances involving illness, notice and supporting documentation may be provided after leave begins. 

The new DOL Final Rule provides much needed clarification to questions lingering from the April FFCRA enactment and subsequent DOL guidance. With that said, COVID-19 legislation — including the forthcoming updates — are complex in nature and require careful adherence in order to mitigate future liability.

As questions, concerns, and legal guidance continue to evolve with the changing times, it is essential for employers to stay informed. If you need assistance with any issues arising from the COVID-19 pandemic, please contact Bryan Meek at 330.253.5586 or bmeek@bmdllc.com, or feel free to contact any member of BMD's Employment & Labor practice group.