COVID-19 Updates and Reminders (Benefit Minute)
This volume of the Benefit Minute provides updates to various regulatory and administrative issues related to coronavirus.
New York District Court Strikes Down Certain FFCRA Provisions
A federal district court in New York has invalidated certain provisions of the Department of Labor’s (DOL) final regulation for emergency paid sick leave (EPSL) and emergency FMLA paid leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The final rule was challenged in court by the State of New York. Specifically, the court struck down:
- The requirement that work must otherwise be available in order for the employee to be eligible for paid leave under the FFCRA (the work availability requirement). This means that employers who temporarily close, even due to government order, or who retain employees in a furloughed status, may have obligations to provide paid leave under FFCRA to employees even though they are not currently working.
- The broad definition of “healthcare providers” for the purpose of who can be excluded from FFCRA paid leave eligibility. Employers providing healthcare services cannot exclude all employees from eligibility for paid leave. The court did not specifically state which employees can still be excluded from eligibility, but presumably this would be, at a minimum, licensed healthcare professionals.
- The requirement that an employer must agree to the use of FFCRA paid leave on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee. As a result, an employer cannot deny a request for intermittent leave unless there is a risk of transmission of the virus.
- The requirement that an employee provide documentation requesting EPSL and/or EFMLA before the beginning of the leave. An employer can still require notice and documentation but cannot compel it before leave is taken.
It is possible that the DOL will appeal this ruling and request a stay so that the changes do not apply immediately. Alternatively, it is possible that the DOL will revise its rules to comply with this court ruling. To date, no action has been taken by the DOL. Given the uncertainty of the DOL’s position and unanswered questions related to the court’s decision, employers may need to seek legal advice before determining whether to grant or deny FFCRA paid leave, especially if the request relates to the work availability requirement.
FFCRA Leave for Child Care
The Department of Labor (DOL) has issued additional questions and answers that summarize when EFMLA paid leave under the FFCRA will be available as children return to school.
- Hybrid model: An employee is eligible to take paid leave on days when the child is not permitted to attend school in person and must instead engage in remote learning, as long as the leave is needed to actually care for the child and no other suitable person is available to do so. For purposes of the FFCRA, the school is effectively closed to the child on days that he or she cannot attend in person.
- Choice between in-person and remote learning: An employee is not eligible to take paid leave since the child’s school is not closed due to COVID–19 related reasons; it is open for the child to attend. FFCRA leave is not available to take care of a child because the employee has chosen for the child to remain home.
- Remote only: An employee is eligible to take FFCRA paid leave while the child’s school remains closed. If the school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations.
Extension of Public Health Emergency
On July 24, 2020, the Department of Health and Human Services extended the public health emergency declaration that was set to expire on July 25th. The extension is for a maximum of 90 days, through October 23, 2020. As a result, health insurers and group health plans must continue to provide medically necessary COVID-19 testing at no cost.
In addition, the National Emergency declaration under the Stafford Act remains in effect. The President can proclaim the emergency over at any point, or allow the declaration to expire on its own accord one year from its original date. In the meantime, employee benefit plans continue to operate in the Outbreak Period with extended deadlines for COBRA, HIPAA special enrollment rights and ERISA.
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