DOL Revises Emergency Leave Rule Following Court Decision

The Department of Labor (DOL) has issued a revision and clarification to the temporary rule it issued April 1, 2020, guidance that implemented emergency paid sick leave and expanded family and medical leave under the Families First Coronavirus Relief Act (FFCRA), also known as the Emergency Leave Rule. As previously communicated, a lawsuit brought by the State of New York in federal court challenged certain parts of the Emergency Leave Rule. On August 3, 2020, the court ruled that the following parts of the Emergency Leave Rule were invalid.

• Requirement that the employer must have work for the employee as a prerequisite for eligibility for emergency leave
• Employer approval authority for an employee to take intermittent emergency leave
• Definition of an employee who is a "healthcare provider"
• Requirement for employees to provide certain documentation to their employers before taking emergency leave

In light of the court's decision, on September 11, 2020, the DOL issued a revision and clarification to the Emergency Leave Rule, which does the following.

1. It reaffirms—in effect, challenging the court ruling—that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. This requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
2. It reaffirms that where intermittent FFCRA leave is permitted by the DOL’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently.
3. It revises the definition of “healthcare provider” to mean those employees who are healthcare providers under FMLA regulations, and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with—and necessary to—the provision of patient care.
4. It revises the FFCRA rule to clarify that the information the employee must give the employer to support the need for his or her emergency paid leave should be provided to the employer as soon as practicable. Also, the notification requirement is revised for expanded family and medical leave to clarify that, similarly, notice from the employee is required as soon as practicable, including before taking the leave if the employee is able.

Based on the foregoing, the original FFCRA rule, as revised by this temporary rule, remains unchanged for workability requirements and intermittent leave. But the definition of "healthcare provider" is revised to limit the extent of employees who can be excluded from emergency leave eligibility and notification timing requirements are eased in accordance with the court's decision.

In addition to the revised temporary rule and an accompanying news release, the DOL added three new Q&As (101-103) to the Families First Coronavirus Response Act: Questions and Answers addressing the effects of the New York court ruling. Additional court challenges to this revision and clarification rule might be on the horizon.