COVID-19 Employer Playbook

The regulations also spelled out several other criteria for leaves:

• Employers do not need to provide employees with paid leave when the employer does not have work for them (the “work availability” requirement) • Employees must receive employer consent before taking intermittent leave • Prior to taking leave, an employee must provide documentation to the employer outlining, among other things, the reason for and duration of the leave. Four Key Aspects of the Regulations Invalidated 1. Definition of Healthcare Provider: The court struck down the DOL’s definition of healthcare provider, finding that it was “vastly overbroad” and did not focus on whether an employee’s duties have a nexus to the provision of healthcare. As such, the rule gave employers wide latitude to exclude employees in a broad array of facilities and positions. Rather than exempting entire companies from providing paid leave, the court held that only employees who are capable of providing healthcare services should be excluded. RESULT: Employers will need to consider, on a role-specific (if not case-by-case) basis, that the “skills, role, duties, or capabilities of a class of employees” render those individuals “capable of providing healthcare services,” before they can be excluded from FFCRA paid leave. 2. Work Availability Requirement: The regulations applied the work availability requirement to eFMLA leave and to three of the six reasons an employee may take ePSL. The court found that the regulations lack an explanation as to why the work availability requirement only applies to half of the ePSL qualifying absences. As a result, the court noted that the requirement was unreasonable. RESULT: Employers may not deny FFCRA paid leave to an employee simply because the employer has no work for the employee. Many employers have already relied on DOL’s rule to grant or deny leave. Under the court’s ruling, employees must still have a FFCRA-qualifying reason for leave, but they may now be eligible even if the employer has no current work for them. 3. Employer Consent for Intermittent Leave: The regulations distinguish between eFMLA leave that may be taken intermittently and ePSL that may not be taken intermittently (unless the employee is teleworking). Employer consent is required in order to take intermittent leave. While the court did not object to limiting intermittent leave to certain types of absences, it did find that the DOL failed to explain why employer consent should be required. RESULT: Employers should allow intermittent eFMLA and ePSL teleworking arrangement leaves upon request. (Note that the prohibition on intermittent leave for certain qualifying absences is allowed because the conditions for which intermittent leave is entirely barred are those that logically correlate with a higher risk of viral infection.


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