Judge Voids Parts Of DOL Rule Implementing Families First Coronavirus Response Act


FAMILIES FIRST CORONAVIRUS RESPONSE ACT

As explained in an earlier post on this blog, the Families First Coronavirus Response Act (“FFCRA”) remains effective until Dec. 31, 2020. Accordingly, two major provisions of the Act remain applicable to employers with fewer than 500 employees.

Emergency Family And Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (“EFMLEA”) expanded the Family & Medical Leave Act (“FMLA”) to cover employees who are unable to work because they must care for a dependent child due to COVID-19. The EFMLEA provides that, “[i]n any case where the need for [leave] is foreseeable, an employee shall provide the employer which such notice of leave as is practicable.”

The EFMLEA, however, provides that an employer of “an employee who is a health care provider or emergency responder may elect to exclude such employee” from the benefits provided by the EFMLEA. The FMLA defines “health care provider” as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate),” or “any other person determined by the Secretary [of Labor] to be capable of providing health care services.”

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (“EPSLA”) provides paid sick leave to employees with one of six qualifying COVID-19-related conditions. These conditions include that the employee:

  1. “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19”;

  2. “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19”;

  3. “is experiencing symptoms of COVID-19 and seeking a medical diagnosis”;

  4. “is caring for an individual subject” to a quarantine or isolation order by the government or a health care provider;

  5. is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or

  6. “is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.”

The EPSLA provides that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

In parallel to the EFMLEA’s exemption for health care providers, under the EPSLA, an employer may deny leave to an employee with a qualifying condition if the employee “is a health care provider or an emergency responder.” The Act provides that “health care provider” has the same meaning given that term in the FMLA, and that the Secretary of Labor “may issue regulations to exclude certain health care providers and emergency responders from the definition of employee.”

DEPARTMENT OF LABOR FINAL RULE

On April 1, 2020, the U.S. Department of Labor (“DOL”) promulgated its Final Rule implementing the FFCRA. Four provisions of the Final Rule, however, differ from the statutory language of FFCRA.

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