Remember long ago when we first told you about that pesky Families First Coronavirus Response Act (“FFCRA”) that went into effect on April 1, 2020? You know, it’s the one that allows employees to take paid leave for 12 weeks if their kids’ school or daycare is closed or up to 80 hours of paid leave if they’ve got the bug, symptoms, waiting for test results or caring for someone with it and the feds pay the freight through payroll withholdings. Well, that law is again getting a lot of attention, first from a federal judge in New York who thinks that the USDOL really screwed up the regulations and then by the USDOL that kinda did a mea culpa.

In August, a federal judge struck down four provisions of the FFCRA regs saying that the USDOL made up stuff that Congress had not intended. While it’s not unusual for an agency to over-step in writing regs, it is uncommon for a court to zap them so quickly and decisively. The judge, whose decision only applied in NYS, called the regs “entirely unreasoned” and a “terse circular regurgitation” of themselves. Ouch! Thank you, sir, may I have another? Even more unusual is that the agency gave up so easily and issued revisions and clarifications within weeks. The biggest change applies to health care providers, so if you’re one of those and haven’t already talked to us, just holler. 

For most employers, the primary clarification concerns employees’ ability to take intermittent FFCRA leave for remote schooling. It’s important to note that the FFCRA, as written by those titans of Congressional clarity, does not even mention intermittent leave–so talk about your agency over-reach, the DOL just added it to see if we were paying attention.  The regs provide that an employee can never take intermittent leave if the employee has the virus or symptoms or is caring for someone that does and that employee would otherwise need to work on-site. That makes sense because it keeps the germs at home. But if the employee can work remotely and/or takes FFCRA leave for the kiddies, intermittent is only available if the boss says so. On that aspect, the court said that because the DOL gave no reason for that distinction, if no reason, then no reg! 

In its mid-September response to the court ruling, the DOL clarified that employees, even those working remotely, can take intermittent leave for any form of FFCRA leave but only with the employer’s consent. The DOL said that the purpose of requiring employer consent is to prevent an employee’s on and off schedule from unduly disrupting the employer’s operations. When there is no threat to employee health, the DOL said, the reg balances the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave. 

The most significant clarification though is the DOL’s declaration that employees do not need employer approval to take FFCRA leave in full day incrementsto care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent… In other words, if Bob from Accounting’s boy Bobby’s school schedule is remote Monday, Wednesday, Friday and in-person Tuesday, Thursday, Bob can take FFCRA leave on the 3 remote days without his employer’s consent because according to the DOL, that is not the meaning of intermittent. We checked with Webster who said: What you takin bout Willis? Sorry, wrong Webster. We meant, Miriam. She says, intermittent means occurring at irregular intervals; not continuous or steady. So to us, in work 2 days, on leave 3 days sounds an awful lot like intermittent requiring employer consent. 

But the DOL is sticking with its story. Here’s how it explains itself:  In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee…..Sorry to interrupt but remember, FFCRA leave is available to care for a child if school or daycare is closed. Please continue DOL:  For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends…and then take leave again when a new qualifying reason arises…The DOL goes on to say that the same reasoning applies if the school uses in-person learning in half day increments. The employee can take a half day leave each half day the student is remote. This makes perfect sense because, after all, that boomerang-like schedule won’t unduly disrupt the employer’s operations. Seriously DOL? And let’s just take a moment to pray for Bob from Accounting who will have to figure out how to count the number of FFCRA days that are taken in half or full day increments in order to keep track of the 12 weeks allowed, and then how to report it for payroll purposes to obtain the proper credits against payroll taxes. And let us all say, poor Bob.

There’s more. At the end of August, before any of this went down, the DOL issued some FFCRA guidance on remote learning. The guidance says that if the employee’s child’s school offers both in-person and remote options, and the employee-parent chooses remote, then FFCRA leave is not available to that employee to care for the remote learner. That is because the employee has an option to send the child to school and come to work. Choose remote, no FFCRA soup for you!

One last curveball. Remember that the FFCRA went into effect on April 1. Many employee-parents used some or maybe all of the 12-weeks of leave during the early months of the pandemic. So if they’re out of FFCRA leave, can you require them to return to work or face termination? That’s an option, except in New Jersey. The Garden State very quietly added a provision to its Family Leave Act that grants employees 12 weeks of job-protected leave to care for a child whose school or daycare is closed. Although not explicit, this leave is likely available for employees home with children engaged in remote learning. Want to know if NJFLA leave is available intermittently? We’re bored with this topic too. Maybe another time.