Earlier in the pandemic, Congress passed the Families First Coronavirus Response Act (“FFCRA”), which has two main components: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“FMLA+”).  Shortly before those new provisions became effective, the United States Department of Labor (“DOL”) provided additional guidance on both the EPSLA and FMLA+, which we summarized here.  In August, however, a New York federal judge vacated several provisions of the FFCRA regulations just as employers were starting to bring their employees back to the office and schools were attempting to reopen. The court’s ruling created confusion for employers nationwide, and it was unclear how the DOL would respond.  That uncertainly was addressed on Friday, however, when the DOL issued a 53-page response to the court’s ruling, which clarifies several issues, including intermittent leave and notice and documentation requirements under the FFCRA.

Q: Can employees decide when they will take intermittent EPSLA or FMLA+ leave?

  • Old rule – We previously explained that the answer was “No.” Under the DOL’s regulations, an employer must consent to an employee’s use of intermittent leave–including FMLA+ leave to care for a child whose school or day care is closed for COVID-related reasons.
  • Court’s ruling – The court found that the FFCRA failed to mention intermittent leave, and therefore that the DOL’s regulations were entitled to some deference.  Nevertheless, the Court found that the DOL’s addition of the requirement that an employer consent to intermittent leave was “entirely unreasoned.”  Therefore, the court struck that requirement from the regulations.  The Court did not discuss the potential impact this decision may have on employers, especially with schools reopening with hybrid or modified schedules.
  • The DOL’s response – The DOL’s response provided a hollow victory for employers, as it affirmed an employer’s need to consent to intermittent FFCRA leave, but then defined “intermittent” in a manner that excludes leave taken due to a school being “closed” on a hybrid schedule.  Specifically, the DOL:

(1) reaffirmed that an employee who is teleworking may take intermittent leave for any of the qualifying reasons under EPSLA or FMLA+ as long as the employer consents;

(2) reaffirmed that an employee who is reporting to the workplace may not take intermittent FFCRA for reasons 1-4 and 6 of the EPSLA, all of which involve medical considerations as the basis for the leave; and

(3) reaffirmed that “employer approval is also an appropriate condition for taking FFCRA leave intermittently to care for a child, whether the employee is reporting to the worksite or teleworking.”

Despite reiterating that employer consent is required for FFCRA childcare leave, the DOL nevertheless stated that “the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.”  Instead, the DOL views each day or week of childcare leave as a separate instance of leave, which ends when the child returns to school.  However, the DOL noted that this situation is different from one in which the school is closed for a period of time and an employee seeks leave only for certain amounts of time within that period.  In that instance, the employee’s leave would be intermittent and would require employer consent.

Q: When can I require employees to provide notice and/or documentation of their need for leave?

  • Old rule – For FMLA+ child-care leave that is foreseeable, the FFCRA directs the employee to provide notice “as is practicable.” The EPSLA provides that employers may require employees to follow reasonable notice procedures “[a]fter the first workday (or portion thereof) . . . in order to continue receiving such paid sick time.”  The DOL regulations stated, however, that notice could not be required in advance for FMLA+ or EPSLA leave.  They also required that employees submit certain documentation to their employer “prior to taking [FFCRA] leave.”
  • Court’s ruling – The court struck the portion of the regulations requiring employees to furnish certain documentation before taking leave, finding that, “to the extent that the Final Rule’s documentation requirement imposes a different and more stringent precondition to leave, it is inconsistent with the statute’s unambiguous notice provisions.”
  • The DOL’s response – The DOL revised the inconsistency in the regulations in two respects:
    • Regarding notice from an employee, the DOL clarified: (1) notice may only be required after the first workday (or portion thereof) for which an employee takes EPSLA leave, and (2) for FMLA+ leave, notice is required as soon as practicable, which generally means employees must provide notice before taking leave if the need for leave is foreseeable.
    • Regarding documentation, the DOL revised its regulations to clarify that the required information must be provided as soon as practicable, which in most cases will be when the employee provides notice of the need for leave.

Employers should carefully review any request for EPSLA or FMLA+ leave to ensure compliance with the regulations, and discuss any concerns with legal counsel. We will continue to update employmentlawletter.comctschoollaw.com, and our firm’s COVID-19 Resource Center with any developments in this area. If you have specific questions regarding this guidance, please contact Peter Murphy or Dori Antonetti.