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New FFCRA Paid Leave Rule – Big Deal or No Big Deal?

September 22, 2020

The federal Department of Labor just made some critical revisions to its temporary Families First  Coronavirus Response Act (FFCRA) paid leave regulation.  These changes stem from an August 3, 2020, U.S. District Court for the Southern District of New York decision that found parts of the original paid sick and expanded family medical leave rule invalid.  

Of course, we've talked about how the new rule varies from both the old one and the District Court ruling.  Clients have been asking questions, plus we are just weirdos who find court-inspired rule changes fascinating.  However, when chatting about it, most of our conversations have centered around this question—is the new rule a big deal, or is it no big deal?

We do think the new rule is significant.  It went into effect on September 16, 2020, and businesses with less than 500 employees may now need to change some internal FFCRA paid leave internal procedures.  However, the revisions affect some employers way more than others, and a few of the changes seem more critical than others.  

So we looked at each FFCRA paid leave modification in detail.  Here’s our analysis of how big of a deal each one appears to be and why.

  1. Revision of the Definition of Healthcare Provider – Pretty Big Deal for Some, but Not An Issue At All for Others

The FFCRA allows employers to opt-out of providing paid leave to “healthcare providers.” The original rule included an expansive definition of a healthcare provider, which the District Court said left too many people exempt.  

The new rule defines a "healthcare provider" as: 

  • Employees who meet the definition of “healthcare provider” under the Family and Medical Leave Act regulations (aka “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery”); and
  • People who are employed 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.

This definition is much narrower than the original, so any company that uses the "healthcare provider" exemption needs to check and make sure it still applies.  Any company outside of the healthcare provider space can ignore this development.

  1. Work Availability Standard – A Medium Deal

In our humble opinions, the most critical change caused by this revision to the rule is how it makes life simpler for all of the businesses that are subject to the FFCRA.  The new rule clarifies that to be eligible to take any FFCRA paid sick or family/medical leave, a person must be an active employee. Not only that, but the employee's FFCRA qualifying event must be the ONLY reason why the person cannot work.  

Initially, the rule only applied this work availability standard to three of the six FFCRA leave qualifying events. Then, the District Court struck the whole work availability standard down, which seemed to imply that furloughed people might be eligible for FFCRA leave.  Now that concept was a HUGE deal.  However, the new rule nixes it completely.  Instead, it is explicit – to meet any of the six FFCRA leave qualifying standards, a person must be an active employee and cannot be furloughed or just have very few hours to work due to the pandemic economy. 

On the off chance an employer is currently letting furloughed or reduced hour employees take FFCRA leave for hours that they would not usually be at work, they will have to stop (or not get reimbursed).  Mostly, though, we think this change will make tons of business owners sigh with relief that they do not have to go back and offer every furloughed employee FFCRA leave.  

  1. Intermittent Leave—More Annoying and Confusing Than A Big Deal

The original rule allowed employees to take FFCRA leave on an intermittent basis as long as it did not pose a public health risk.  However, the employer had to agree to it first, and both parties had to make a plan ahead of time about how it would work.  In our observation, that system worked pretty well.  It allowed people to make arrangements with an employer to take paid leave intermittently to care for a child whose school was COVID-closed.  It did not permit people to take leave to get a COVID test, go back to work while awaiting results, and then take leave again when they tested positive. But then, the District Court ruled that employers could not require people to ask permission first.  Instead, businesses had to allow employees to take intermittent FFCRA leave on demand.  

We’re not even sure how many employers even got around to implementing that new, no permission needed, stipulation. Of course, we told our clients they had to stop requiring it, but as much as we hate to admit it, we do not advise every broker and employer in America (yet).  Anyway, now it doesn’t even matter, because the new rule restores the original intermittent leave with permission requirement.  

So, if you were an efficient compliance nerd like us and told everyone to stop requiring permission last month, now you need to go tell everyone to switch back. We are blaming the confusion on the curse of 2020.  Feel free to copy.

  1. Leave Documentation – Not That Big of a Deal 

The FFCRA rules require employees to provide documentation showing how they qualify for either type of paid leave. The first regulation implied that employees needed to give their employer all of their documentation in advance.  The revised rule clarifies that employers cannot make an employee provide their documentation before they start their leave. Instead, employees have to turn documentation in as soon as it is practical. 

We think this change is sensible and will make employers and employees alike happy. It's not that big of a deal, though, because most employers weren’t incredibly strict about requiring advance documentation. Think about it, who wants to make someone who needs paid sick leave due to COVID exposure come to drop off paperwork before going home to quarantine?  Knowing that now you don't have to ask is nice, but not life-changing because you probably weren't doing it in the first place.  

  1. Leave Notification – Slightly a Big Deal for Employer Planning Purposes 

The initial draft of the FFCRA rules seemed to prohibit employers from asking employees to request FFCRA paid family/medical leave in advance.  The new rule explains that it was basically a typo and corrects it.  An employer may now ask employees for advance notice of foreseeable FFCRA paid family/medical leave needs. An employer just can’t require advance notice for FFCRA paid sick leave or FFCRCA family/medical leave needed on an emergency basis. 

To put that in real terms, imagine an employee learns today that his child's school is going hybrid for October.  If he then concludes that he will need every other week in October off to log his children back into Zoom every time they “accidentally” touch their Chromebook screens and scream that the Internet is broken, that is a foreseeable need.  The employee needs to ask everyone he knows for thoughts and prayers. He also must immediately tell his employer that he will require FFCRA leave next month.  

Say the same employee gets a call from daycare tomorrow afternoon telling him to pick his two-year-old up right now because the director and one of the teachers have the ‘Rona. All he needs to do immediately is tell the employer where he is going.  He can ask for the FFCRA leave officially later and provide the paperwork to prove his qualifying need as soon as convenient.

So, there you have it, friends.  Sometimes things we think are going to be a big deal are nothing-burgers.  Other times, they are important, but not earth-shattering.  We’d rank the FFCRA leave changes somewhere between those two possibilities.  What do you think?  Agree or disagree with our assessment?  Let us know.  We are pandemic lonely and love to chat with our friends far and wide!