As employers were faced with confronting new leave of absence rights due to COVID-19, many looked to the Department of Labor (DOL) for guidance to better understand their obligations under the recently passed Families First Coronavirus Recovery Act (FFCRA).
On March 18, 2020, Congress passed the FFCRA in response to the COVID-19 pandemic and to provide employees impacted by the coronavirus up to 12 weeks of paid leave to care for themselves or family members. But a recent U.S. DOL audit report and a New York federal judge have called into question some of that guidance and even the emergency regulations promulgated in the early days of the pandemic. The DOL’s Office of the Inspector General said in the new report that the agency’s Wage and Hour Division could be doing more to ensure workers can access benefits under the FFCRA.
Following criticism that the DOL had taken an overly expansive definition of “health care workers” who would be exempt from the paid leave, some are urging restoring access to emergency paid leave for workers who should never have been exempted. Specifically, the audit notes that the DOL posted a temporary rule on April 1, 2020, with a broader definition of health care providers than established by the FMLA. The definition includes a broad set of occupations that might be exempt from FFCRA benefits.
In addition to possibly limiting those health care workers eligible for FFCRA leave, a NY Judge recently overturned the DOL’s rule finding employees were not entitled to paid sick or family and medical leave if their employer does not have work for them. Thus, the judge’s interpretation of the law would allow paid leave for employees still employed, but not working because the employer has no work for them to do as long as they have a need for leave under any of the six COVID-19-related criteria set out in the law.
While the DOL Audit did not address the issue, the recent NY ruling called into question the DOL regulation and guidance related to what kinds of documentation can be required of employees. The FFCRA does not address whether documentation can be required of an employee to support a leave request. Instead, employees need only give such advance notice “as is practicable” for foreseeable expanded FMLA leave and with respect to paid sick leave notice after the first missed workday in accordance with the employer’s usual notice procedures. Yet, the regulations promulgated by the DOL expressly stated that an employer can require documentation to support an employee’s request for leave to be submitted to the employer prior to taking FFCRA leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable.
Also called into question was the DOL’s rule limiting intermittent leave under the FFCRA. The ruling allows employers to limit intermittent leave when the employee poses a threat of spreading COVID-19 in the workplace, but the judge found that the employees should be allowed to take FFCRA leave intermittently for reasons that don’t pose a risk of infection, such as to care for a child whose school or daycare is closed because of the pandemic.
The DOL Audit Report and the NY judge’s ruling does not immediately impact California employers. It is unclear whether other courts will come to similar conclusions or if the DOL will appeal the decision or create new rules. However, these recent actions highlight the myriad potential legal issues that will likely be raised by employees in the coming months.
So What Should Employers Do?
- Rely on the definition of health care provider as set forth in the FMLA when determining whether employees in the health care industry are exempt from the paid leave rights under the FFCRA.
- Allow qualified employees to take intermittent FFCRA leave to care for children whose school or daycare is closed.
- Consider providing paid leave to furloughed employees who experience an otherwise paid leave qualifying event.
- Do not demand documentation from employees as a precondition to taking FFCRA leave. Employers are still required to obtain details and documentation in order to get the federal tax credit for benefits paid under the FFCRA. But in light of the conflict between the statute and regulation, allow the employee time to provide any needed documentation.