Paid Leave Under the Families First Coronavirus Response Act, 57677-57691 [2020-20351]

Agencies

• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 85, Number 180 (Wednesday, September 16, 2020)]
[Rules and Regulations]
[Pages 57677-57691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20351]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 826

RIN 1235-AA35


Paid Leave Under the Families First Coronavirus Response Act

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Temporary rule.

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SUMMARY: The Secretary of Labor (``Secretary'') is promulgating 
revisions and clarifications to the temporary rule issued on April 1, 
2020, implementing public health emergency leave under Title I of the 
Family and Medical Leave Act (FMLA) and emergency paid sick leave to 
assist working families facing public health emergencies arising out of 
the Coronavirus Disease 2019 (COVID-19) global pandemic, in response to 
an August 3, 2020 district court decision finding certain portions of 
that rule invalid. Both types of emergency paid leave were created by a 
time-limited statutory authority established under the Families First 
Coronavirus Response Act (FFCRA), and are set to expire on December 31, 
2020. The FFCRA and its implementing regulations, including this 
temporary rule, do not affect the FMLA after December 31, 2020.

DATES: This rule is effective from September 16, 2020 through December 
31, 2020.

FOR FURTHER INFORMATION CONTACT: Amy DeBisschop, Director, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, 
Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this final rule may be obtained in alternative 
formats (Large Print, Braille, Audio Tape or Disc), upon request, by 
calling (202) 693-0675 (this is not a toll-free number). TTY/TDD 
callers may dial toll-free 1-877-889-5627 to obtain information or 
request materials in alternative formats.
    Questions of interpretation and/or enforcement of the agency's 
regulations may be directed to the nearest WHD district office. Locate 
the nearest office by calling WHD's toll-free help line at (866) 4US-
WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time 
zone, or log onto WHD's website for a nationwide listing of WHD 
district and area offices at https://www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 18, 2020, President Trump signed into law the FFCRA, which 
creates two new emergency paid leave requirements in response to the 
COVID-19 global pandemic. Division E of the FFCRA, ``The Emergency Paid 
Sick Leave Act'' (EPSLA), entitles certain employees of covered 
employers to take up to two weeks of paid sick leave if the employee is 
unable to work for specific qualifying reasons related to COVID-19. 
These qualifying reasons are: (1) Being subject to a Federal, state, or 
local quarantine or isolation order related to COVID-19; (2) being 
advised by a health care provider to self-quarantine due to COVID-19 
concerns; (3) experiencing COVID-19 symptoms and seeking a medical 
diagnosis; (4) caring for another individual who is either subject to a 
Federal, state, or local quarantine or isolation order related to 
COVID-19 or who has been advised by a health care provider to self-
quarantine due to COVID-19 concerns; (5) caring for the employee's son 
or daughter whose school, place of care, or child care provider is 
closed or unavailable due to COVID-19 related reasons; and (6) 
experiencing any other substantially similar condition as specified by 
the Secretary of Health and Human Services (HHS).\1\ FFCRA section 
5102(a)(1)-(6). Division C of the FFCRA, ``The Emergency Family and 
Medical Leave Expansion Act'' (EFMLEA), which amends Title I of the 
Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (FMLA), permits 
certain employees of covered employers to take up to 12 weeks of 
expanded family and medical leave, ten of which are paid, if the 
employee is unable to work due to a need to care for his or her son or 
daughter whose school, place of care, or child care provider is closed 
or unavailable due to COVID-19 related reasons. FFCRA section 3012, 
adding FMLA section 110(a)(2)(A).
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    \1\ The Secretary of HHS has not identified any other 
substantially similar condition that would entitle an employee to 
take paid sick leave.
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    These paid sick leave and expanded family and medical leave 
requirements will expire on December 31, 2020. The costs to private-
sector employers of providing paid leave required by the EPSLA and the 
EFMLEA (collectively ``FFCRA leave'') are ultimately covered by the 
Federal Government as Congress provided tax credits for these employers 
in the full amount of any FFCRA leave taken by their employees. On 
March 27, 2020, President Trump signed into law the Coronavirus Aid, 
Relief, and Economic Security Act, Public Law 116-136 (CARES Act), 
which amends certain provisions of the EPSLA and the provisions of the 
FMLA added by the EFMLEA.
    FFCRA leave is part of a larger set of Federal Government-provided 
COVID-19 economic relief programs, which also include the Paycheck 
Protection Program and expanded unemployment benefits provided under 
the CARES Act. The Paycheck Protection Program, CARES Act sections 
1101-1114, provided an incentive for employers to keep workers on their 
payrolls. FFCRA leave provides paid leave to certain employees who 
continue to be employed but are prevented from working for specific 
COVID-19 related reasons. And the CARES Act's expanded unemployment 
benefits, CARES Act sections 2101-2116, provided help to workers whose

[[Page 57678]]

positions have been affected by COVID-19. Together, these three 
programs provide relief with respect to: (1) Employed individuals whose 
employers continue to pay them; (2) employed individuals who must take 
leave from work; and (3) unemployed individuals who no longer had work 
or had as much work.
    The FFCRA grants authority to the Secretary to issue regulations 
for certain purposes. Section 3102(b) of the FFCRA, as amended by 
section 3611(7) of the CARES Act, and 5111(3) of the FFCRA grant the 
Secretary authority to issue regulations ``as necessary, to carry out 
the purposes of this Act, including to ensure consistency'' between the 
EPSLA, the EFMLEA, and the Act's tax credit reimbursement provisions. 
Due to the exigency created by COVID-19, the FFCRA authorizes the 
Secretary to issue EPSLA and EFMLEA regulations under two exceptions to 
the usual requirements of the Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq. One of those exceptions permits issuing a rule 
without prior public notice or the opportunity for the public to 
comment if there is good cause to believe that doing so is 
``impractical, unnecessary, or contrary to the public interest''; the 
other permits a rule to become effective immediately, rather than after 
a 30-day delay, if there is good cause to do so. FFCRA sections 3102(b) 
(as amended by section 3611(7) of the CARES Act), 5111 (referring to 5 
U.S.C. 553(b)(B) and (d)(3)). Relying on those exceptions, the 
Department promulgated a temporary rule to carry out the EPLSA and 
EFMLEA, which was made public on April 1, 2020. 85 FR 19326 (published 
April 6, 2020); see also 85 FR 20156-02 (April 10, 2020 correction and 
correcting amendment to April 1 rule).
    On April 14, 2020, the State of New York filed suit in the United 
States District Court for the Southern District of New York (``District 
Court'') challenging certain parts of the temporary rule under the APA. 
On August 3, 2020, the District Court ruled that four parts of the 
temporary rule are invalid: (1) The requirement under Sec.  826.20 that 
paid sick leave and expanded family and medical leave are available 
only if an employee has work from which to take leave; (2) the 
requirement under Sec.  826.50 that an employee may take FFCRA leave 
intermittently only with employer approval; (3) the definition of an 
employee who is a ``health care provider,'' set forth in Sec.  
826.30(c)(1), whom an employer may exclude from being eligible for 
FFCRA leave; and (4) the statement in Sec.  826.100 that employees who 
take FFCRA leave must provide their employers with certain 
documentation before taking leave. New York v. U.S. Dep't of Labor, No. 
20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).\2\
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    \2\ The District Court invalidated Sec.  826.20 because the 
Department did not sufficiently explain the positions taken in that 
provision and because the regulatory text explicitly applied the 
work availability requirement only to three of the six qualifying 
reasons for taking FFCRA leave, Sec.  826.50 because the Department 
did not sufficiently explain the positions taken in that provision, 
and Sec. Sec.  826.30(c)(1) and .100 as being inconsistent with the 
statute. Id. at *8-12.
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    The Department has carefully examined the District Court's opinion 
and has reevaluated the portions of the temporary rule that the court 
held were invalid. Given the statutory authorization to invoke 
exemptions from the usual requirements to engage in notice-and-comment 
rulemaking and to delay a rule's effective date, see FFCRA sections 
3102(b), 5111, the time-limited nature of the FFCRA leave benefits, the 
urgency of the COVID-19 pandemic and the associated need for FFCRA 
leave, and the pressing need for clarity in light of the District 
Court's decision, the Department issues this temporary rule, effective 
immediately, to reaffirm its regulations in part, revise its 
regulations in part, and further explain its positions. In summary:
    1. The Department reaffirms that paid sick leave and expanded 
family and medical leave may be taken only if the employee has work 
from which to take leave and explains further why this requirement is 
appropriate. This temporary rule clarifies that this requirement 
applies to all qualifying reasons to take paid sick leave and expanded 
family and medical leave.
    2. The Department reaffirms that, where intermittent FFCRA leave is 
permitted by the Department's regulations, an employee must obtain his 
or her employer's approval to take paid sick leave or expanded family 
and medical leave intermittently under Sec.  825.50 and explains 
further the basis for this requirement.
    3. The Department revises the definition of ``health care 
provider'' under Sec.  825.30(c)(1) to mean employees who are health 
care providers under 29 CFR 825.102 and 825.125,\3\ and other employees 
who are employed to provide diagnostic services, preventive services, 
treatment services, or other services that are integrated with and 
necessary to the provision of patient care.
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    \3\ The definition of ``health care provider'' under Sec.  
825.102 is identical to the definition under Sec.  825.125.
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    4. The Department revises Sec.  826.100 to clarify that the 
information the employee must give the employer to support the need for 
his or her leave should be provided to the employer as soon as 
practicable.
    5. The Department revises Sec.  826.90 to correct an inconsistency 
regarding when an employee may be required to give notice of expanded 
family and medical leave to his or her employer.

II. Reaffirming and Explaining the Work-Availability Requirement Under 
Sec.  826.20, Consistent With Supreme Court Precedent and FMLA 
Principles

    The Department's April 1, 2020 rule stated that an employee is 
entitled to FFCRA leave only if the qualifying reason is a but-for 
cause of the employee's inability to work. 85 FR 19329. In other words, 
the qualifying reason must be the actual reason the employee is unable 
to work, as opposed to a situation in which the employee would have 
been unable to work regardless of whether he or she had a FFCRA 
qualifying reason. This means an employee cannot take FFCRA paid leave 
if the employer would not have had work for the employee to perform, 
even if the qualifying reason did not apply. Id. This work-availability 
requirement was explicit in the regulatory text as to three of the six 
qualifying reasons for leave.\4\ As explained below, the Department's 
intent, despite not explicitly including the work-availability 
requirement in the regulatory text regarding the other three qualifying 
reasons, was to apply the requirement to all reasons.
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    \4\ Compare Sec.  826.20(a)(2), (6) and (9) (applying 
requirement to leave due to a government quarantine or isolation 
order, to care for a person subject to such an order or who has been 
advised by a health care provider to self-quarantine, and to care 
for the employee's child whose school or place of care is closed or 
child care provider is unavailable, respectively) with Sec.  
826.20(a)(3), (4), and (1)(vi) (no language applying requirement to 
leave due to being advised by a health care provider to self-
quarantine, to having COVID-19 symptoms and seeking a diagnosis, or 
to other substantially similar conditions defined by the Department 
of Health and Human Services, respectively).
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    The work-availability requirement and the but-for causation 
standard that undergirds it were part of the legal challenge to the 
rule. New York, 2020 WL 4462260 at *6-7. The FFCRA uses the words 
``because'' and ``due to'' in identifying the reasons for which an 
employee may take FFCRA leave. See FFCRA sections 3102 and 5102(a). The 
District Court held that the FFCRA's use of ``because'' and ``due to'' 
in referring to the reasons an employee is unable to work or telework 
were ambiguous as to the causation standard imposed and further 
concluded that the work-availability requirement was invalid for

[[Page 57679]]

two reasons. One, the Department's explicit application of the 
requirement to only three of the six reasons for taking leave was 
unreasoned and inconsistent with the statutory text; two, the 
Department did not sufficiently explain the reason for imposing this 
requirement at all. Id. at *7-9.
    The Department has carefully considered the District Court's 
opinion and now provides a fuller explanation for its original 
reasoning regarding the work-availability requirement. With this 
revised rule, the Department explains why it continues to interpret the 
FFCRA to impose a but-for causation standard that in turn supports the 
work-availability requirement for all qualifying reasons for leave.\5\ 
Further, the Department revises Sec.  826.20 to explicitly include the 
work-availability requirement in all qualifying reasons for leave.
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    \5\ To the extent that the District Court required addition or 
further explanation of the Department's final action in promulgating 
this rule, the additional explanation here should be read as a 
supplement to--and not a replacement of--the discussion of causation 
included in the April 1 temporary rule.
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    The FFCRA states that an employer shall provide its employee FFCRA 
leave to the extent that the employee is unable to work (or telework) 
due to a need for leave ``because'' of or ``due to'' a qualifying 
reason for leave under FFCRA sections 3102 and 5102(a).\6\ The terms 
``because,'' ``due to,'' and similar statutory phrases have been 
repeatedly interpreted by the Supreme Court to require ``but-for'' 
causation.\7\ ``[A]n act is not a `but-for' cause of an event if the 
event would have occurred even in the absence of the act[,]'' \8\ 
including where the event would have occurred due to another sufficient 
cause.\9\ The District Court recognized that the ``traditional meaning 
of `because' (and `due to') implies a but-for causal relationship,'' 
but concluded that these terms' use in the FFCRA did not necessarily 
foreclose a different interpretation. New York, 2020 WL 4462260, at *7.
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    \6\ The statute's use of the mandatory language ``shall,'' in 
setting forth the employer's obligation, FFCRA section 5102(a), 29 
U.S.C. 2612(a), is therefore limited by prerequisites: What the 
employer is obligated to provide to employees is ``leave'' and the 
employer's obligation is triggered only when the employee's need for 
leave is because of one of the qualifying reasons. These 
prerequisites, set forth in the plain text, to employers having an 
obligation to provide FFCRA leave are unaffected by the fact that 
the FFCRA elsewhere provides certain exceptions to that obligation 
(e.g., the health care provider exception).
    \7\ See, e.g., Burrage v. United States, 571 U.S. 204, 211 
(2014) (the phrase ``results from'' in a criminal statute ``requires 
proof that the harm would not have occurred in the absence of--that 
is, but for--the defendant's conduct'') (internal citations and 
quotation marks omitted); Univ. of Tex. SW. Ctr. v. Nassar, 570 U.S. 
338, 346-47 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 
176 (2009) (``[T]he ordinary meaning of the [Age Discrimination in 
Employment Act's] requirement that an employer took adverse action 
`because of' age is that . . . age was the `but-for' cause of the 
employer's adverse decision.''); Safeco Ins. Co. of Am. v. Burr, 551 
U.S. 47, 63 (2007) (``[T]he phrase `based on' indicates a but-for 
causal relationship. . . .'').
    \8\ In re Fisher, 649 F.3d 401, 403 (5th Cir. 2011); see also, 
e.g., Burrage, 571 U.S. at 219 (heroin use was not proven to be a 
cause of death where ``the Government concedes that there is no 
`evidence that [the decedent] would have lived but for his heroin 
use''').
    \9\ See Brandt v. Fitzpatrick, 957 F.3d 67, 76 (1st Cir. 2020) 
(employer may avoid damages in an employment discrimination case 
``if it can show it would have made the same decision even if race 
hadn't factored in (meaning race wasn't the `but-for' cause of the 
failure to hire)'').
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    After considering the District Court's conclusion that the statute 
does not necessarily require the traditional result, the Department 
continues to believe that the traditional meaning of ``because'' and 
``due to'' as requiring but-for causation is the best interpretation of 
the FFCRA leave provisions in this context. This standard is especially 
compelling in light of Supreme Court precedent applying the ``ordinary 
meaning'' of but-for causation where the underlying statute did not 
specify an alternative standard. Burrage v. United States, 571 U.S. 
204, 216 (2014) (``Congress could have written [a statute] to impose a 
mandatory minimum when the underlying crime `contributes to' death or 
serious bodily injury, or adopted a modified causation test tailored to 
cases involving concurrent causes . . . . It chose instead to use 
language that imports but-for causality.''). Here too, the Department 
sees no textual basis or other persuasive reason to deviate from the 
standard meanings of these terms.\10\ The Department's regulations thus 
interpret the FFCRA to require that an employee may take paid sick 
leave or expanded family and medical leave only to the extent that a 
qualifying reason for such leave is a but-for cause of his or her 
inability to work.
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    \10\ This conclusion reflects a fair and natural reading of the 
FFCRA, and there is no textual basis here to deviate from such a 
reading. This is so even through the FFCRA may be classified as a 
remedial statute under which Congress sought to protect workers. 
See, e.g., Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 
(2018) (statute's remedial purpose did not justify departing from 
``a fair reading'' of the plain text). This is particularly true in 
light of the fact that FFCRA leave is but one part of a wider 
universe of COVID-19-related government-provided relief. Moreover, 
the text of the FFCRA demonstrates that Congress was attuned to not 
only employees' need for leave but also to employers' circumstances. 
See, e.g., FFCRA 3102(b); 3105, 5102(a).
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    In the FFCRA context, if there is no work for an individual to 
perform due to circumstances other than a qualifying reason for leave--
perhaps the employer closed the worksite (temporarily or permanently)--
that qualifying reason could not be a but-for cause of the employee's 
inability to work.\11\ Instead, the individual would have no work from 
which to take leave. The Department thus reaffirms that an employee may 
take paid sick leave or expanded family and medical leave only to the 
extent that any qualifying reason is a but-for cause of his or her 
inability to work. Because the Department agrees with the District 
Court that there is no basis, statutory or otherwise, to apply the 
work-availability requirement only to some of the qualifying reasons 
for FFCRA leave, and in keeping with the Department's original intent, 
the Department amends Sec.  826.20(a)(3), (a)(4) to state explicitly, 
as Sec.  826.20(a)(2), (6), and (9) do, that an employee is not 
eligible for paid leave unless the employer would otherwise have work 
for the employee to perform. The Department similarly adds Sec.  
826.20(a)(10) to make clear such requirement is likewise needed when an 
employee requests paid leave for a substantially similar condition as 
specified by the Secretary of Health and Human Services.\12\
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    \11\ See Brandt, 957 F.3d at 76.
    \12\ The Department notes that as of the date of this 
publication, the Secretary of Health and Human Servces had not 
specified a substantially similar condition in accordance with this 
subsection.
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    The Department's continued application of the work-availability 
requirement is further supported by the fact that the use of the term 
``leave'' in the FFCRA is best understood to require that an employee 
is absent from work at a time when he or she would otherwise have been 
working. As to this point, the District Court concluded that the 
statute did not mandate such an interpretation. New York, 2020 WL 
4462260, at *7-8. After reconsideration, the Department now reaffirms 
that even if ``leave'' could encompass time an employee would not have 
worked regardless of the relevant qualifying reason, the Department, 
based in significant part on its experience administering and enforcing 
other mandatory leave requirements, interprets the FFCRA as allowing 
employees to take paid leave only if they would have worked if not for 
the qualifying reason for leave. ``Leave'' is most simply and clearly 
understood as an authorized absence from work; if an employee is not 
expected or required to work, he or she is not taking leave. This 
interpretation is consistent with the Department's long-standing 
interpretation of the term ``leave'' in the FMLA (which the EFMLEA 
amended). See 29 U.S.C. 2612(a). For instance, the Department's FMLA 
regulation at

[[Page 57680]]

Sec.  825.200(h) states that ``if for some reason the employer's 
business activity has temporarily ceased and employees generally are 
not expected to report for work,'' the time that ``the employer's 
activities have ceased do not count against the employee's FMLA leave 
entitlement.'' Time that an employee is not required to work does not 
count against an employee's 12 workweek leave entitlement under the 
FMLA--including any EFMLEA leave--because it is not ``leave.'' \13\ In 
addition, the Department's regulations implementing Executive Order 
13706, which require certain federal contractors to provide employees 
with paid sick leave under certain circumstances, reflect this same 
understanding. The regulations explicitly define ``paid sick leave'' to 
mean ``compensated absence from employment,'' 29 CFR 13.2 (emphasis 
added), and explain that ``a contractor must permit an employee to use 
paid sick leave to be absent from work for that contractor during time 
the employee would have been performing work on or in connection with a 
covered contract or, [under other specified circumstances], during any 
work time because of [the enumerated qualifying reasons for leave],'' 
29 CFR 13.5(c)(1) (emphasis added).
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    \13\ Under the FMLA, a period during which an employer has no 
work for an employee is not counted against the employee's 
entitlement to leave. Because FFCRA leave is paid, an added result 
in the same scenario is that the employee would not receive pay for 
that period because that period would not count as leave. The 
introduction of pay, however, does not change the meaning of 
``leave.'' Paid leave under the FFCRA provides employees income for 
time during which they otherwise would have worked and therefore 
would have otherwise been paid. If an employer has no work for an 
employee, the employee would not have reported to work (or telework) 
or been paid, and therefore any payments for FFCRA leave would not, 
as intended, substitute for wages that he or she would otherwise 
have received.
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    The Department notes that removing the work-availability 
requirement would not serve one of the FFCRA's purposes: Discouraging 
employees who may be infected with COVID-19 from going to work. If 
there is no work to perform, there would be no need to discourage 
potentially infected employees from coming to work through the 
provision of paid FFCRA leave. Nor is there a need to protect a 
potentially infected employee who stays home from an employer's 
disciplinary actions if the employer has no work for the employee to 
perform.
    Removing the work-availability requirement would also lead to 
perverse results. Typically, if an employer closes its business and 
furloughs its workers, none of those employees would receive paychecks 
during the closure or furlough period because there is no paid work to 
perform. But if an employee with a qualifying reason could take FFCRA 
leave even when there is no work, he or she could take FFCRA leave, 
potentially for many weeks, even when the employer closes its business 
and furloughs its workers. The employee on FFCRA leave would continue 
to be paid during this period, while his or her co-workers who do not 
have a qualifying reason for taking FFCRA leave would not. The 
Department does not believe Congress intended such an illogical result.
    To be clear, the Department's interpretation does not permit an 
employer to avoid granting FFCRA leave by purporting to lack work for 
an employee. The work-availability requirement for FFCRA leave should 
be understood in the context of the applicable anti-retaliation 
provisions, which prohibit employers from discharging, disciplining, or 
discriminating against employees for taking such leave. See 29 U.S.C. 
2615; FFCRA section 5104, as amended by CARES Act section 3611(8); 29 
CFR 826.150(a), 826.151(a). Accordingly, employers may not make work 
unavailable in an effort to deny FFCRA leave because altering an 
employee's schedule in an adverse manner because that employee requests 
or takes FFCRA leave may be impermissible retaliation. See Burlington 
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (``A schedule 
change in an employee's work schedule may make little difference to 
many workers, but may matter enormously to a young mother with school-
age children.''); see also Welch v. Columbia Mem'l Physician Hosp. 
Org., Inc., No. 1:13-CV-1079 GLS/CFH, 2015 WL 6855810, at *7 (N.D.N.Y. 
Nov. 6, 2015) (employee's ``return[ ] from FMLA leave days before her 
supervisors changed her schedule . . . . suffic[ed] to support an 
inference of retaliation.''). There must be a legitimate, non-
retaliatory reason why the employer does not have work for an employee 
to perform. This may occur, for example, where the employer has 
temporarily or permanently ceased operations at the worksite where the 
employee works or where a downturn in business forces the employer to 
furlough the employee for legitimate business reasons. See, e.g., 
Mullendore v. City of Belding, 872 F.3d 322, 329 (6th Cir. 2017) (no 
FMLA retaliation where employer ``has demonstrated a legitimate [and 
non-pretextual] reason for terminating'' the employee). Although an 
out-of-work employee would not be eligible for FFCRA leave in these 
scenarios, he or she may be eligible for unemployment insurance and 
other assistance programs.
    New York State has argued that the work-availability requirement 
would ``insert[] a capacious and unpredictable loophole basing 
eligibility on the hour-by-hour or day-by-day happenstance that work 
may not be available.'' Pl's Mem. Of L., New York v. U.S. Dep't of 
Labor, 2020 WL 3411251 (S.D.N.Y. filed May 5, 2020). But as discussed 
above, the requirement is not a loophole but rather a longstanding 
principle in the Department's employee-leave regulations. It does not 
operate as an hour-by-hour assessment as to whether the employee would 
have a task to perform but rather questions whether the employee would 
have reported to work at all. Moreover, the availability or 
unavailability of work must be based on legitimate, non-discriminatory 
and non-retaliatory business reasons.\14\
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    \14\ Regardless, any economic incentive for private-sector 
employers to wrongfully deny their employees FFCRA leave is limited 
by the fact that, for these employers, FFCRA leave is fully funded 
by the Federal Government through tax credits.
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    Furthermore, FFCRA leave is only one form of relief that has been 
made available during the COVID-19 crisis. Among other things, FFCRA 
paid leave ensures workers are not forced to choose between their 
paychecks and the public health measures needed to combat the virus; 
for example, an employee who may have been exposed to COVID-19 is 
encouraged not to go to work and thereby risk spreading the virus. 
Other provisions of the CARES Act assist workers in other 
circumstances. To encourage employers to maintain employees on the 
payroll, the Paycheck Protection Program, CARES Act sections 1101-1114, 
made available low-interest, and potentially forgivable, loans to 
employers who use those funds to continue to pay employees who might 
otherwise be laid off. To furnish relief to employees whose employers 
are not able to maintain them on the payroll, the Relief for Workers 
Affected by Coronavirus Act, CARES Act sections 2101-2116, expanded the 
Federal Government's support of unemployment insurance by enlarging the 
scope of unemployment coverage, the length of time for which 
individuals were eligible for unemployment payments, and the amount of 
those payments. And most directly, the CARES Act created a refundable 
tax credit, advances of which are being paid in 2020, to address the 
financial stress of the pandemic. The credit is worth up to $1,200 per 
eligible individual or up to $2,400 for individuals filing a joint 
return, plus up to $500 per qualifying child. CARES Act

[[Page 57681]]

section 2201. All of this was in addition to industry-specific support 
measures and myriad changes to the Internal Revenue Code. See, e.g., 
CARES Act sections 2202-2308; 4001-4120. Against this backdrop, the 
Department interprets the FFCRA's paid sick leave and emergency family 
and medical leave provisions to grant relief to employers and employees 
where employees cannot work because of the enumerated reasons for 
leave, but not where employees cannot work for other reasons, in 
particular the unavailability of work from the employer.

III. Reaffirming and Explaining the Employer-Approval Requirement for 
Intermittent Leave Under Sec.  826.50 in Accordance With FMLA 
Principles

    The Department reaffirms the April 1 temporary rule's position that 
employer approval is needed to take intermittent FFCRA leave, and 
explains the basis for this requirement, which is consistent with 
longstanding FMLA principles governing intermittent leave. Intermittent 
leave is leave taken in separate blocks of time due to a single 
qualifying reason, with the employee reporting to work intermittently 
during an otherwise continuous period of leave taken for a single 
qualifying reason.\15\ Under the FMLA, intermittent leave is 
specifically defined as ``leave taken in separate periods of time due 
to a single illness or injury, rather than for one continuous period of 
time, and may include leave of periods from an hour or more to several 
weeks.'' 29 CFR 825.102. In the original FMLA statute, Congress 
expressly authorized employees taking FMLA leave for any qualifying 
reason to do so intermittently but only under certain circumstances. 
Depending on the reason for taking FMLA leave, the statute requires a 
medical need to take intermittent leave or an agreement between the 
employer and employee before an employee may take intermittent leave. 
See Public Law 103-3, sec. 102(b)(1), codified at 29 U.S.C. 2612(b)(1). 
In 2008, Congress amended the FMLA to create two new reasons for FMLA 
leave: Qualifying exigencies due to service in the Armed Forces and to 
care for injured service members. 29 U.S.C. 2612(a)(1)(E), (a)(3). Like 
the FMLA in 1993, the 2008 amendments explicitly authorized 
intermittent leave for these new qualifying FMLA leave reasons. 29 
U.S.C. 2612(b)(1).
---------------------------------------------------------------------------

    \15\ Intermittent leave occurs only when the employee has 
periods of leave interrupted with periods of reporting to work (or 
telework). In contrast, an employee who works a schedule that itself 
could be characterized as ``intermittent'' or sporadic in which he 
or she has, for example, several days off in between each shift, is 
not taking intermittent leave where the periods between the shifts 
for which leave is used are periods during which the employee is not 
scheduled to work.
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    In contrast to the FMLA, in the FFCRA, Congress said nothing about 
intermittent leave,\16\ but granted the Department broad regulatory 
authority to effectuate the purposes of the EPLSA and EFMLEA (which 
amends the FMLA) and to ensure consistency between the two laws.\17\ As 
the District Court acknowledged, because ``Congress did not address 
intermittent leave at all in the FFCRA[,] it is therefore precisely the 
sort of statutory gap . . . that DOL's broad regulatory authority 
empowers it to fill.'' New York, 2020 WL 4462260, at *11.
---------------------------------------------------------------------------

    \16\ Congress did, however, include temporal language as to 
leave, which is consistent with a recognition that an employee with 
a qualifying reason for leave might not need to take his or her full 
FFCRA leave entitlement of two weeks (up to 80 hours) of EPSLA leave 
and twelve weeks of EFMLEA leave, ten of which are paid. See FFCRA 
section 3102(b) (``An employer shall provide paid leave for each day 
of [EFMLEA] leave that an employee takes''); id. Sec.  5110(f)(A)(i) 
(defining ``paid sick time'' as ``an increment of compensated leave 
that . . . is provided by an employer for use during an absence from 
employment'' for an EPSLA qualifying reason); id. Sec.  7001(b) 
(referencing days and calendar quarters for tax credit purposes). 
These provisions do not mention ``intermittent leave,'' a term 
Congress has previously invoked and therefore could have used but 
did not.
    \17\ FFCRA section 5111(3) (delegating to the Secretary of Labor 
authority to promulgate regulations ``as necessary, to carry out the 
purposes of this Act, including to ensure consistency'' between the 
EPSLA and the EFMLEA) (emphasis added); id. section 3102(b), amended 
by CARES Act section 3611(7) (same).
---------------------------------------------------------------------------

    The Department did not interpret the absence of language 
authorizing intermittent leave under the FFCRA to categorically permit 
\18\ or prohibit \19\ intermittent leave. Rather, Sec.  826.50 permits 
an employee who is reporting to a worksite to take FFCRA leave on an 
intermittent basis only when taking leave to care for his or her child 
whose school, place of care, or child care provider is closed or 
unavailable due to COVID-19, and only with the employer's consent. 29 
CFR 826.50(b). Because this is the only qualifying reason for EFMLEA 
leave, such leave may always be taken intermittently provided that the 
employer consents. As to EPSLA leave, this constitutes only one of the 
six potential qualifying reasons. The Department reasoned that the 
other reasons for taking EPSLA leave correlate to a higher risk of 
spreading the virus and therefore that permitting intermittent leave 
would hinder rather than further the FFCRA's purposes.
---------------------------------------------------------------------------

    \18\ Permitting employees to take intermittent leave without 
restriction would create tension with how both Congress and the 
Department have understood intermittent leave in most of the 
circumstances for which it is permitted under the FMLA. Further, 
while the Department recognizes that the FFCRA is intended in part 
to allow eligible employees to take paid leave for certain COVID-19-
related reasons, unrestricted intermittent leave would undermine a 
statutory purpose of combating the COVID-19 public health emergency. 
For example, giving employees who take paid sick leave because an 
individual in their care could be infected with COVID-19, see FFCRA 
section 5102(a)(4), unrestricted flexibility to go to work on days 
of their choosing could increase the risk of COVID-19 contagion. See 
New York, 2020 WL4462260, at *12. Accordingly, the Department did 
not interpret the FFCRA to permit unrestricted intermittent leave.
    \19\ An alternative construction that prohibits employees from 
intermittently taking paid sick leave and expanded family and 
medical leave in any circumstance is arguably more consistent with 
Congress' and the Department's practice of explicitly identifying 
circumstances in which FMLA leave may be taken intermittently. It 
also would be more consistent with the FFCRA's public health 
objectives because employees who take FFCRA leave for some, but not 
all, qualified reasons may have been infected or exposed to COVID-
19, and allowing them to return to work intermittently would 
exacerbate COVID-19 contagion. Nevertheless, the Department does not 
believe this is the best interpretation because it would 
unnecessarily limit employer and employee flexibilities in 
accommodating work and leave needs in situations that do not as 
directly implicate public health concerns.
---------------------------------------------------------------------------

    An employee who is teleworking (and not reporting to the worksite) 
may take intermittent leave for any of the FFCRA's qualifying reasons 
as long as the employer consents. 29 CFR 826.50(c). The District Court 
upheld the rule's prohibition on intermittent leave for employees who 
are reporting to the worksite when the reason for leave correlates to a 
higher risk of spreading the virus, i.e., all qualifying reasons except 
for caring for the employee's child due to school or childcare closure 
or unavailability. New York, 2020 WL 4462260, at *11-12 & n.9; 29 CFR 
826.50(b)(2). However, the District Court held that the Department did 
not adequately explain the rationale for the requirement that 
intermittent leave, where available, can only be taken with the 
employer's consent. New York, 2020 WL 4462260, at *12. After 
reconsideration, the Department affirms its earlier interpretation--
with additional explanation.\20\
---------------------------------------------------------------------------

    \20\ The Department gives the additional explanation here as a 
supplement to--and not a replacement of--the discussion of 
intermittent leave included in the April 1 temporary rule.
---------------------------------------------------------------------------

    As the April 1 rule explained, the Department ``imported and 
applied to the FFCRA certain concepts of intermittent leave from its 
FMLA regulations.'' 85 FR 19336.\21\ Under

[[Page 57682]]

those regulations, ``FMLA leave may be taken intermittently . . . under 
certain circumstances'' specified in the statute and applied in the 
regulation. 29 CFR 825.202.\22\ In other words, as Congress has 
previously specified, and as the Department's regulations require, FMLA 
leave must be taken in a single block of time unless specific 
conditions are met. These conditions are: (1) A medical need for 
intermittent leave taken due to the employee's or a family member's 
serious health condition, which the employer may require to be 
certified by a health care provider; (2) employer approval for 
intermittent leave taken to care for a healthy newborn or adopted 
child; or (3) a qualifying exigency related to service in the Armed 
Forces. Id.
---------------------------------------------------------------------------

    \21\ In so doing, the Department aligned the availability, 
conditions, and limits of intermittent leave under EPSLA and EFMLEA 
to the greatest extent possible consistent with 29 U.S.C. 2612(b) 
and 29 CFR 825.202, while at the same time applying and balancing 
Congress' broader objectives to contain COVID-19 through furnishing 
paid leave to employees.
    \22\ In 1995, the Department promulgated regulations 
implementing the intermittent leave provisions as part of its final 
rule implementing the FMLA, which had been enacted in 1993. See 60 
FR 2180. The current version of the regulation includes 
organizational and other minor amendments made in 2008, 2013, and 
2015. See 29 CFR 825.202; see also 80 FR 10001; 78 FR 8902; 73 FR 
67934.
---------------------------------------------------------------------------

    The regulations concerning intermittent leave due to service in the 
Armed Forces are not relevant in the very different FFCRA context. See 
29 CFR 825.202(d). The Department further believes certified medical 
need is not an appropriate condition for FFCRA intermittent leave. As 
the District Court explained, an employer may not require documentation 
of any sort as a precondition to taking FFCRA leave, New York, 2020 WL 
4462260, at *12, so the Department does not believe certification could 
be required as a precondition for such leave taken intermittently. 
Moreover, certified medical need is inapplicable where an employee 
takes expanded family and medical leave or paid sick leave under Sec.  
826.20(a)(v) due to the closure or unavailability of his or her child's 
school, place of care, or child care provider because those qualifying 
reasons bear no relationship to any medical need.
    The remaining qualifying reasons to take paid sick leave under 
Sec.  826.20(a)(i)-(iv) and (vi) are medically related but do not lend 
themselves to the allowance of intermittent leave for medical reasons. 
A COVID-19-related quarantine or isolation order under Sec.  
826.20(a)(i) prevents certain employees from going to work because the 
issuing government authority has determined that allowing such 
employees to work would exacerbate COVID-19 contagion. Similarly, a 
health care provider may advise an employee to self-quarantine under 
Sec.  826.20(a)(ii) because that employee is at particular risk if he 
or she is infected by the coronavirus or poses a risk of infecting 
others. In both cases, the government authority and health care 
provider may be concerned that an individual to whom the order or 
advice is directed has an elevated risk of having COVID-19.\23\ If so, 
an employee who takes leave under Sec.  826.20(a)(iv) to care for such 
an individual may have elevated risk of COVID-19 exposure. Finally, an 
employee who is experiencing COVID-19 symptoms under Sec.  
826.20(a)(iii), or other similar symptoms identified by the Secretary 
of HHS under Sec.  826.20(a)(iii), would also have elevated risk of 
having COVID-19.
---------------------------------------------------------------------------

    \23\ This is not the only reasons why a government entity or a 
health care provider may order or advise an individual to 
quarantine. For instance, the government entity or health care 
provider may be concerned that the individual has elevated 
vulnerability to COVID-19 because that individual falls within a 
certain age range or has a certain medical condition.
---------------------------------------------------------------------------

    At bottom, the qualifying reasons to take paid sick leave under 
Sec.  826.20(a)(i)-(iv) are medically related because they include 
situations where the employee may have an elevated risk of being 
infected with COVID-19, or is caring for someone who may have an 
elevated risk of being infected with COVID-19. Rather than justifying 
intermittent leave, these medical considerations militate against 
intermittent FFCRA leave where the employee may have an elevated risk 
of being infected with COVID-19 or is caring for someone who may have 
such elevated risk. Permitting such an employee to return to work 
intermittently when he or she is at an elevated risk of transmitting 
the virus would be incompatible with Congress' goal to slow the spread 
of COVID-19. See 85 FR 19336; New York, 2020 WL 4462260, at *12. The 
same is broadly true where an individual is at higher risk if infected: 
Permitting an individual who has been ordered or advised to self-
isolate due to his or her vulnerability to COVID-19 to return to work 
intermittently would also undermine the FFCRA's public health 
objectives. Accordingly, the regulations do not allow employees who 
take paid sick leave under Sec.  826.20(a)(i)-(iv) and (vi) to return 
to work intermittently at a worksite.\24\ Employees who take paid sick 
leave for these reasons, however, may telework on an intermittent basis 
without posing the risk of spreading the contagion at the worksite or 
being infected themselves.
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    \24\ Employees are not required to use up their entire FFCRA 
leave entitlement the first time they face a qualifying reason for 
taking FFCRA leave. Depending on their circumstances, employees may 
not need to take their full FFCRA leave entitlement when taking 
leave for one of these qualifying reasons. If so, they will be 
eligible to take the remainder of their FFCRA leave entitlement 
should they later face a separate qualifying reason for such leave. 
Taking leave at a later date for a distinct qualifying reason is not 
intermittent leave.
---------------------------------------------------------------------------

    The Department believes the employer-approval condition for 
intermittent leave under its FMLA regulation is appropriate in the 
context of FFCRA intermittent leave for qualifying reasons that do not 
exacerbate risk of COVID-19 contagion. It is a longstanding principle 
of FMLA intermittent leave that such leave should, where foreseeable, 
avoid ``unduly disrupting the employer's operations.'' 29 CFR 
825.302(f). It best meets the needs of businesses that this general 
principle is carried through to the COVID-19 context, by requiring 
employer approval for such leave. In the context of intermittent leave 
being required for medical reasons, the FMLA long has recognized 
certified medical needs for intermittent leave as paramount, unless the 
leave is for planned medical treatment, in which case the employee must 
make reasonable efforts to schedule the leave in a manner that does not 
unduly disrupt operations. 29 U.S.C. 2612(e)(2)(A); 29 CFR 825.302(e). 
However, when intermittent leave is not required for medical reasons, 
the FMLA 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. 29 CFR 825.120(b); 
.121(b). The Department's FFCRA regulations already provide that 
employees may telework only where the employer permits or allows. See 
Sec.  826.10(a). Since employer permission is a precondition under the 
FFCRA for telework, the Department believes it is also an appropriate 
condition for teleworking intermittently due to a need to take FFCRA 
leave.\25\ On the other hand, the Department does not believe that an 
employee should be required to obtain certification of medical need in 
order to telework intermittently because it may be unduly burdensome in 
this context for an employee to obtain such certification. Medical 
certification would also be redundant because the employee must already 
obtain employer permission to telework in the first place. The 
Department has thus aligned the employer-agreement requirements to

[[Page 57683]]

apply to both telework and intermittent leave from telework. The 
Department believes that its approach affords both employers and 
employees flexibility. In many circumstances, these agreed-upon 
telework and scheduling arrangements may reduce or even eliminate an 
employee's need for FFCRA leave by reorganizing work time to 
accommodate the employee's needs related to COVID-19.
---------------------------------------------------------------------------

    \25\ For example, consider an employee who takes paid sick leave 
after being advised to self-isolate by a health care provider. If 
the employer does not permit telework, the employee would be unable 
to work intermittently at the worksite during the period of paid 
sick leave. Intermittent leave would be possible only if the 
employer allows the employee to telework.
---------------------------------------------------------------------------

    Employer approval is also an appropriate condition for taking FFCRA 
leave intermittently to care for a child, whether the employee is 
reporting to the worksite or teleworking. This condition already 
applies where an employee takes FMLA leave to care for his or her 
healthy newborn or adopted child, which is similar to where an employee 
takes FFCRA leave to care for his or her child because the child's 
school, place of care, or child care provider is closed or unavailable.
    The employer-approval condition would not apply to employees who 
take FFCRA leave in full-day increments to care for their children 
whose schools are operating on an alternate day (or other hybrid-
attendance) basis because such leave would not be intermittent under 
Sec.  826.50. 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. The employee might be 
required to take FFCRA leave on Monday, Wednesday, and Friday of one 
week and Tuesday and Thursday of the next, provided that leave is 
needed to actually care for the child during that time and no other 
suitable person is available to do so. 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 
(i.e., the school opened the next day), and then take leave again when 
a new qualifying reason arises (i.e., school closes again the day after 
that). Under the FFCRA, intermittent leave is not needed because the 
school literally closes (as that term is used in the FFCRA and 29 CFR 
826.20) and opens repeatedly. The same reasoning applies to longer and 
shorter alternating schedules, such as where the employee's child 
attends in-person classes for half of each school day or where the 
employee's child attends in-person classes every other week and the 
employee takes FFCRA leave to care for the child during the half-days 
or weeks in which the child does not attend classes in person. This is 
distinguished from the scenario where the school is closed for some 
period, and the employee wishes to take leave only for certain portions 
of that period for reasons other than the school's in-person 
instruction schedule. Under these circumstances, the employee's FFCRA 
leave is intermittent and would require his or her employer's 
agreement.
    With those explanations and exceptions in mind, the Department 
reaffirms that employer approval is needed to take FFCRA leave 
intermittently in all situations in which intermittent FFCRA leave is 
permitted.

IV. Revisions to Definition of ``Health Care Provider'' Under Sec.  
826.30(c)(1) to Focus on the Employee

    Sections 3105 and 5102(a) of the FFCRA, respectively, allow 
employers to exclude employees who are ``health care provider[s]'' or 
who are ``emergency responder[s]'' from eligibility for expanded family 
and medical leave and paid sick leave. The Department understands that 
the option to exclude health care providers and emergency responders 
serves to prevent disruptions to the health care system's capacity to 
respond to the COVID-19 public health emergency and other critical 
public health and safety needs that may result from health care 
providers and emergency responders being absent from work. The FFCRA 
adopts the FMLA definition of ``health care provider,'' FFCRA section 
5110(4), which covers (i) licensed doctors of medicine or osteopathy 
and (ii) ``any other person determined by the Secretary to be capable 
of providing health care services,'' 29 U.S.C. 2611(6). The FFCRA, 
however, uses the term ``health care provider'' in two markedly 
different contexts. Section 5102(a)(2) of the FFCRA uses ``health care 
provider'' to refer to medical professionals who may advise an 
individual to self-isolate due concerns related to COVID-19 such that 
the individual may take paid sick leave to follow that advice. In the 
Department's April 1 temporary rule implementing the FFCRA's paid leave 
provisions, the Department used the definition of this term it adopted 
under the FMLA, 29 CFR 825.125, to define this group of health care 
providers. Sec.  826.20(a)(3). In the second context, Sections 3105 and 
5102(a) of the FFCRA allow employers to exclude employees who are 
``health care providers'' or who are ``emergency responders'' from the 
FFCRA's entitlement to paid leave. The Department promulgated a 
different definition of ``health care provider'' to identify these 
employees, Sec.  826.30(c)(1), which the District Court held was overly 
broad. See New York, 2020 WL 4462260, at *9-10.
    The District Court explained that because the FFCRA adopted the 
FMLA's statutory definition of ``health care provider'' in 29 U.S.C. 
2611(6), including the portion of that definition permitting the 
Secretary to determine that additional persons are ``capable of 
providing health care services,'' any definition adopted by the 
Department must require ``at least a minimally role-specific 
determination'' of which persons are ``capable of providing healthcare 
services.'' New York, 2020 WL 4462260, at *10. In other words, the 
definition cannot ``hinge[ ] entirely on the identity of the 
employer,'' but must depend on the ``skills, role, duties, or 
capabilities'' of the employee. Id. To define the term otherwise would 
sweep in certain employees of health care facilities ``whose roles bear 
no nexus whatsoever to the provision of healthcare services.'' Id. The 
District Court did not foreclose, however, an amended regulatory 
definition that is broader than the FMLA's regulatory definition, 
explaining that there is precedent for the proposition that an agency 
may define a term shared by two sections of a statute differently ``as 
long as the different definitions individually are reasoned and do not 
exceed the agency's authority.'' Id. at *10 n.8.
    After careful consideration of the District Court's order, this 
rule adopts a revised definition of ``health care provider,'' to appear 
at Sec.  826.30(c)(1), for purposes of the employer's optional 
exclusion of employees who are health care providers from FFCRA leave. 
First, revised Sec.  826.30(c)(1)(i) defines a ``health care provider'' 
to include employees who fall within the definition of health care 
provider under 29 CFR 825.102 and 825.125. Specifically, revised Sec.  
826.30(c)(1)(i)(A) cites 29 CFR 825.102 and 825.125--to bring 
physicians and others who make medical diagnoses within this term. 
Second, revised Sec.  826.30(c)(1)(i)(B), consistent with the District 
Court's order, identifies additional employees who are health care 
providers by focusing on the role and duties of those employees rather 
than their employers. It expressly states that an employee is a health 
care provider if he or she is ``capable of providing health care 
services.'' The definition then further limits the universe of relevant 
``health care services'' that the employee must be capable of providing 
to qualify as a ``health care provider''--i.e., the duties or role of 
the employee. Specifically, a health care provider must be ``employed 
to provide diagnostic services, preventive services, treatment 
services,

[[Page 57684]]

or other services that are integrated with and necessary to the 
provision of patient care.''
    Neither the FMLA nor FFCRA defines ``health care services,'' 
leaving a statutory gap for the Department to fill. When used in the 
context of determining who may take leave despite a need to respond to 
a pandemic or to ensure continuity of critical operations within our 
health care system, the term ``health care services'' is best 
understood to encompass a broader range of services than, as in the 
FMLA context, primarily those medical professionals who are licensed to 
diagnose serious health conditions. To interpret this critical term, 
the Department is informed by how other parts of Federal law define 
this term. In one notable example, the Pandemic and All-Hazards 
Preparedness and Advancing Innovation Act of 2019 (Pandemic Act) 
defines ``health care service'' in the context of a pandemic response 
to mean ``any services provided by a health care professional, or by 
any individual working under the supervision of a health care 
professional, that relate to (A) the diagnosis, prevention, or 
treatment of any human disease or impairment; or (B) the assessment or 
care of the health of human beings.'' 42 U.S.C. 234(d)(2). The services 
listed in subparagraphs (A) and (B) of this definition reflect 
Congress's view of health care services that are provided during a 
pandemic. In the Department's view, the Pandemic Act's description of 
the categories of services that qualify as ``health care services'' 
provides a useful baseline for interpretation of ``health care 
services'' as that term is used in connection with the FFCRA because 
both statutes focus on pandemic response. Accordingly, for purposes of 
who may be excluded by their employers from taking FFCRA leave, the 
revised regulation provides that an employee is ``capable of providing 
health care services,'' and thus may be a ``health care provider'' 
under 29 U.S.C. 2611(6)(B), if he or she is employed to provide 
diagnostic services, preventative services, or treatment services. The 
Department also includes a fourth category, services that are 
integrated with and necessary to the provision of patient care and 
that, if not provided, would adversely impact patient care, which is 
analogous to but narrower than the Pandemic Act's reference to services 
``related to . . . the assessment or care of the health of human 
beings.'' See U.S.C. 234(d)(2)(B). These categories are codified in the 
revised Sec.  826.30(c)(1)(i)(B).
    The Pandemic Act and the FFCRA diverge in an important way, 
however. The provision of the Pandemic Act cited above limits the 
liability of ``health care professionals,'' defined to be limited to 
individuals ``licensed, registered, or certified under Federal or State 
laws or regulations to provide health care services,'' who provide 
services as members of the Medical Reserve Corps or in the Emergency 
System for Advance Registration of Volunteer Health Professionals. 42 
U.S.C. 234(d)(1). The FFCRA's optional exclusion from its leave 
entitlements has a different purpose: Ensuring that the health care 
system retains the capacity to respond to COVID-19 and other critical 
health care needs. See 85 FR 19335. Congress' optional exclusion of 
emergency responders in addition to health care providers demonstrates 
that Congress was intending to provide a safety valve to ensure that 
critical health and safety services would not be understaffed during 
the pandemic. Given this context, the Department concluded Congress did 
not intend to limit the optional health care provider exclusion to only 
physicians and others who make medical diagnoses, i.e. the persons that 
qualify as a health care provider in the different contexts posed by 
the FMLA and EPSLA. The Department thus interprets ``health care 
services'' for the purpose of this definition to encompass relevant 
services even if not performed by individuals with a license, 
registration, or certification. For the same reason, the Department has 
determined that an employee is ``capable'' of providing health care 
services if he or she is employed to provide those services. That is, 
the fact that the employee is paid to perform the services in question 
is, in this context, conclusive of the employee's capability. While a 
license, registration, or certification may be a prerequisite for the 
provision of some health care services, the Department's interpretation 
of ``health care services'' encompasses some services for which 
license, registration, or certification is not required at all or not 
universally required.
    In any event, Congress defined health care services, listed in 42 
U.S.C. 234(d)(2)(A) and (B), in the context of combatting a pandemic. 
The Department also recognizes that the definition must have limits, as 
the District Court held. The Department's revised ``health care 
provider'' definition is thus clear that employees it covers must 
themselves must be capable of providing, and employed to provide 
diagnostic, preventative, or treatment services or services that are 
integrated with and necessary to diagnostic, preventive, or treatment 
services and, if not provided, would adversely impact patient care. It 
is not enough that an employee works for an entity that provides health 
care services. Moreover, the Department has designed the fourth 
category to encompass only those ``services that are integrated with 
and necessary to the provision of patient care'' and that, ``if not 
provided, would adversely impact patient care.'' Health care services 
that do not fall into any of these categories are outside the 
Department's definition. Finally, the Department adds descriptions to 
emphasize that the definition of ``health care provider'' is far from 
open-ended by identifying specific types of employees who are and are 
not included within the definition and by describing the types of roles 
and duties that would make an employee a ``health care provider.''
    Revised Sec.  826.30(c)(1)(ii) lists the three types of employees 
who may qualify as ``health care providers'' under Sec.  
826.30(c)(1)(i)(B). First, Sec.  826.30(c)(1)(ii)(A) explains that 
included within the definition are nurses, nurse assistants, medical 
technicians, and any other persons who directly provide the services 
described in Sec.  826.30(c)(1)(i)(B), i.e., diagnostic, preventive, 
treatment services, or other services that are integrated with and 
necessary to the provision of patient care are health care providers.
    Second, Sec.  826.30(c)(1)(ii)(B) explains that, included within 
the definition, are employees providing services described in paragraph 
(c)(1)(i)(B) under the supervision, order, or direction of, or 
providing direct assistance to, a person described in paragraphs 
(c)(1)(i)(A) (that is, employees who are health care providers under 
the usual FMLA definition) or (c)(1)(ii)(A) (that is, nurses or nurse 
assistants and other persons who directly provide services described in 
paragraph (c)(1)(i)(B)).
    Finally, under Sec.  826.30(c)(1)(ii)(C), ``health care providers'' 
include employees who may not directly interact with patients and/or 
who might not report to another health care provider or directly assist 
another health care provider, but nonetheless provide services that are 
integrated with and necessary components to the provision of patient 
care. Health care services reasonably may include services that are not 
provided immediately, physically to a patient; the term health care 
services may reasonably be understood to be broader than the term 
health care. For example, a laboratory technician who processes test 
results would be providing diagnostic health care services because,

[[Page 57685]]

although the technician does not work directly with the patient, his or 
her services are nonetheless an integrated and necessary part of 
diagnosing the patient and thereby determining the proper course of 
treatment.\26\ Processing that test is integrated into the diagnostic 
process, like performing an x-ray is integrated into diagnosing a 
broken bone.
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    \26\ The District Court's opinion noted that ``lab technicians'' 
do not ``directly provide healthcare services to patients.'' See New 
York, 2020 WL 4462260, at *10. However, the precise question whether 
any lab technician may be a health care provider was not before or 
decided by the District Court. The relevant statutory definition 
does not limit the persons the Secretary may determine capable of 
providing health care services to only those who provide health care 
services directly to patients. As explained in this context, the 
Department concludes some persons who provide health care services 
will do so indirectly. Importantly, however, the Department's 
definition includes only persons who themselves provide health care 
services, whether indirectly or directly. Accordingly, the 
Department concludes based on the explanation provided above that, 
while not all lab technicians will necessarily qualify as health 
care providers, some will. The determination requires a role-
specific analysis.
---------------------------------------------------------------------------

    Individuals who provide services that affect, but are not 
integrated into, the provision of patient care are not covered by the 
definition, because employees who do not provide health care services 
as defined in paragraph (c)(1)(i)(B) are not health care providers. 
Accordingly, revised Sec.  826.30(c)(1)(iii) provides examples of 
employees who are not health care providers. The Department identifies 
information technology (IT) professionals, building maintenance staff, 
human resources personnel, cooks, food service workers, records 
managers, consultants, and billers. While the services provided by 
these employees may be related to patient care--e.g., an IT 
professional may enable a hospital to maintain accurate patient 
records--they are too attenuated to be integrated and necessary 
components of patient care. This list is illustrative, not exhaustive.
    Recognizing that a health care provider may provide services at a 
variety of locations, and to help the regulated community identify the 
sorts of employees that may perform these services, Sec.  
826.30(c)(2)(iv) provides a non-exhaustive list of facilities where 
health care providers may work, including temporary health care 
facilities that may be established in response to the COVID-19 
pandemic.\27\ This list contains almost the same set of health care 
facilities listed in the original Sec.  826.30(c)(1)(i) and is drawn 
from 42 U.S.C. 300jj(3), which also contains a non-exhaustive list of 
entities that qualify as ``health care providers.'' \28\ Consistent 
with the District Court's decision, however, the revised regulatory 
text explicitly provides that not all employees who work at such 
facilities are necessarily health care providers within the definition. 
For example, the categories of employees listed in Sec.  
826.30(c)(1)(iii) would not qualify as ``health care providers'' even 
if they worked at a listed health care facility. On the other hand, 
employees who do not work at any of the listed health care facilities 
may be health care providers under FFCRA sections 3105 and 5102(a). 
Thus, the list is merely meant to be a helpful guidepost, but itself 
says nothing dispositive as to whether an employee is a health care 
provider.
---------------------------------------------------------------------------

    \27\ The Javits Center in New York City, for example, was 
converted into a temporary hospital to treat COVID-19 patients. See, 
e.g., Adam Jeffery and Hannah Miller, Coronavirus, Gov. Guomo, the 
National Guard and FEMA transform the Javits Center into a hospital, 
CNCN, Mar 28, 2020, available at https://www.cnbc.com/2020/03/27/coronavirus-gov-cuomo-the-national-guard-and-fema-transform-the-javits-center-into-a-hospital.html.
    \28\ ``The term `health care provider' includes a hospital, 
skilled nursing facility, nursing facility, home health entity or 
other long term care facility, health care clinic, community mental 
health center . . ., renal dialysis facility, blood center, 
ambulatory surgical center . . ., emergency medical services 
provider, Federally qualified health center, group practice, a 
pharmacist, a pharmacy, a laboratory, a physician . . ., a 
practitioner . . ., a rural health clinic, . . . an ambulatory 
surgical center . . ., a therapist, . . .and any other category of 
health care facility, entity, practitioner, or clinician determined 
appropriate by the Secretary [of Health and Human Services].'' 42 
U.S.C. 300jj(3).
---------------------------------------------------------------------------

    Under this revised definition, Sec.  826.30(c)(1)(v) provides 
specific examples of services that may be considered ``diagnostic 
services, preventative services, treatment services, or other services 
that are integrated with and necessary to the provision of patient 
care'' under Sec.  826.30(c)(1)(i). These examples are non-exhaustive 
and are meant to be illustrative.
    Diagnostic services include, for example, taking or processing 
samples, performing or assisting in the performance of x-rays or other 
diagnostic tests or procedures, and interpreting test or procedure 
results. These services are integrated and necessary because without 
their provision, patient diagnosis would be undermined and individuals 
would not get the needed care. To illustrate, a technician or nurse who 
physically performs an x-ray is providing a diagnostic service and 
therefore is a health care provider.
    Preventative services include, for example, screenings, check-ups, 
and counseling to prevent illnesses, disease, or other health problems. 
As with diagnostic services, preventative services are integrated and 
necessary because they are an essential component of health care. For 
example, a nurse providing counseling on diabetes prevention or on 
managing stress would be providing preventative services and therefore 
would be a health care provider.
    Treatment services are the third category of services which make up 
health care services. Treatment services include, for example, 
performing surgery or other invasive or physical interventions, 
administering or providing prescribed medication, and providing or 
assisting in breathing treatments.
    The last category of health care services are those services that 
are integrated with and necessary to diagnostic, preventive, or 
treatment services and, if not provided, would adversely impact patient 
care. This final category is intended to cover other integrated and 
necessary services that, if not provided, would adversely affect the 
patient's care. Such services include, for example, bathing, dressing, 
hand feeding, taking vital signs, setting up medical equipment for 
procedures, and transporting patients and samples. These tasks must be 
integrated and necessary to the provision of patient care, which 
significantly limits this category.
    For example, bathing, dressing, or hand feeding a patient who 
cannot do that herself is integrated into to the patient's care. In 
another example, an individual whose role is to transport tissue or 
blood samples from a patient to the laboratory for analysis for the 
purpose of facilitating a diagnosis would be providing health care 
services because timely and secure transportation of the samples is 
integrated with and necessary to provide care to that patient.\29\ 
These tasks also must be something that, if not performed, would 
adversely affect the patient's care, and they also must be integrated 
into that patient's care. Thus, tasks that may be merely indirectly 
related to patient care and are not necessary to providing care are not 
health care services. Further, the Department notes that some of the 
exemplar services listed in Sec.  826.30(c)(1)(v)(D) may fit into more 
than one category.
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    \29\ Again, this requirement operates against the backdrop that 
a health care provider must be employed to provide the identified 
health care services. Therefore, a person employed to provide 
general transportation services that does not, for example, 
specialize in the transport of human tissue or blood samples is not 
a health care provider.
---------------------------------------------------------------------------

    Finally, Sec.  826.30(c)(1)(vi) explains that the above definition 
of ``health care

[[Page 57686]]

provider'' applies only for the purpose of determining whether an 
employer may exclude an employee from eligibility to take FFCRA leave. 
This definition does not otherwise apply for the purposes of the FMLA. 
Nor does it identify health care providers whose advice to self-
quarantine may constitute a qualified reason for paid sick leave under 
FFCRA section 5102(a)(2).
    Revised Sec.  826.30(c)(1)'s definition of ``health care provider'' 
for purposes of FFCRA sections 3105 and 5102(a) remains broader than 
the definition of ``health care provider'' under Sec.  825.125, which 
defines the term for the pre-existing parts of FMLA and for purposes of 
FFCRA section 5102(a)(2). This is because these two definitions serve 
different purposes. The same term is usually presumed to have the same 
meaning throughout a single statute. Brown v. Gardner, 513 U.S. 115, 
118 (1994). But ``this presumption . . . yields readily to indications 
that the same phrase used in different parts of the same statute means 
different things.'' Barber v. Thomas, 560 U.S. 474, 484 (2010) 
(collecting cases). The Department purposefully limited Sec.  825.125's 
definition of ``health care provider'' to licensed medical 
professionals because the pre-existing FMLA definition used that term 
in the context of who could certify the diagnosis of serious health 
conditions for purposes of FMLA leave.\30\ As a result, the definition 
in 29 CFR 825.125 is narrower than the ordinary understanding of 
``health care provider,'' since many ``providers'' of health care 
services--such as nurses, physical therapists, medical technicians, or 
pharmacists--do not diagnose serious health conditions. See 29 CFR 
825.115(a)(1) (defining continuing treatment for incapacity to require 
``[t]reatment two or more times, within 30 days of the first day of 
incapacity, by a health care provider, a nurse under direct supervision 
of a health care provider, or by a provider of health care services 
(e.g., physical therapist) under orders of, or on referral by, a health 
care provider'') (emphases added); id. 825.115(c)(1) (defining 
continuing treatment for a chronic condition as including ``periodic 
visits for treatment by a health care provider or a nurse under the 
direct supervision of a health care provider'' (emphasis added)).
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    \30\ Commenters to the 1993 proposed FMLA regulations asked the 
Department to define ``health care provider'' to include ``providers 
of a broad range of medical services.'' 58 FR 31800. The Department 
considered ``such a broad definition . . . inappropriate'' because, 
at that time, the term ``health care provider'' was used in the FMLA 
to refer to those who ``will need to indicate their diagnosis in 
health care certificates.'' Id.
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    In contrast, and as explained above, the term ``health care 
provider'' serves an entirely different purpose in FFCRA sections 3105 
and 5102(a). The Department believes these sections are best understood 
to have granted employers the option to exclude from paid leave 
eligibility health care providers whose absence from work would be 
particularly disruptive because those employees' services are important 
to combating the COVID-19 public health emergency and are essential to 
the continuity of operations of our health care system in general.\31\ 
The definition of ``health care provider'' as limited only to 
diagnosing medical professionals under 29 CFR 825.125 is, in the 
Department's view, incompatible with this understanding of these 
sections. For example, nurses provide crucial services, often directly 
related to the COVID-19 public health emergency or to the continued 
operations of our health care system in general, but as noted, most 
nurses are not ``health care providers'' under Sec.  825.125.\32\ Nor 
are laboratory technicians who process COVID-19 or other crucial 
medical diagnostic tests, or other employees providing the critical 
services described above. But these workers are vital parts of the 
health system capacity that the Department believes Congress sought to 
preserve with the exclusions in FFCRA sections 3105 and 5102(a). A 
purposefully narrow definition of ``health care providers'' such as 
that in 29 CFR 825.125 would make excludable only a small class of 
employees that the Department believes would lack a connection to the 
identified policy objective. In accord with that understanding, revised 
Sec.  826.30(c)(1) adopts a broader, but still circumscribed, 
definition of ``health care provider'' than 29 CFR 825.125.
---------------------------------------------------------------------------

    \31\ Although the statute does not explicitly articulate the 
purpose of these exceptions, the Department believes it is the only 
reasonable inference given that FFCRA sections 3015 and 5102(a) each 
allowed employers to exclude both ``health care providers'' and 
``emergency responders'' from FFCRA leave. Moreover, at the time the 
FFCRA was passed, many people feared that the health system capacity 
would be strained, and these provisions appear to have been 
calculated to ameliorate that issue. See, e.g., NYC Mayor urges 
national enlistment program for doctors, Associated Press, Apr. 3, 
2020, available at https://www.pbs.org/newshour/health/nyc-mayor-urges-national-enlistment-program-for-doctors; Jack Brewster, Cuomo: 
`Any Scenario That Is Realistic Will Overwhelm The Capacity Of The 
Current Healthcare System,' Forbes, Mar. 26, 2020, available at 
https://www.forbes.com/sites/jackbrewster/2020/03/26/cuomo-any-scenario-that-is-realistic-will-overwhelm-the-capacity-of-the-current-healthcare-system/#2570066e7cf1; Melanie Evans and Stephanie 
Armour, Hospital Capacity Crosses Tipping Point in U.S. Coronavirus 
Hot Spots, WSJ.com, Mar. 26, 2020, available at https://www.wsj.com/articles/hospital-capacity-crosses-tipping-point-in-u-s-coronavirus-hot-spots-11585215006; Beckers Hospital Review, COVID-19 response 
requires `all hands on deck' Atlantic Health System CEO says, Mar. 
20, 2020, available at https://www.beckershospitalreview.com/hospital-management-administration/covid-19-response-requires-all-hands-on-deck-atlantic-health-system-ceo-says.html. The Department 
recognizes that this understanding of FFCRA sections 3105 and 
5102(a) means that fewer people may receive paid leave. However, as 
explained, the Department believes this was the balance struck by 
Congress.
    \32\ The 1995 FMLA final rule added to Sec.  825.125's 
definition of health care provider ``nurse practitioners and nurse-
midwives (who provide diagnosis and treatment of certain conditions, 
especially at health maintenance organizations and in rural areas 
where other health care providers may not be available) if 
performing within the scope of their practice as allowed by State 
law.'' 60 FR 2199. Other nurses, however, are not generally 
considered health care providers under 29 CFR 825.125.
---------------------------------------------------------------------------

V. Revising Notice and Documentation Requirements Under Sec. Sec.  
826.90 and .100 To Improve Consistency

    The FFCRA permits employers to require employees to follow 
reasonable notice procedures to continue to receive paid sick leave 
after the first workday (or portion thereof) of leave. FFCRA section 
5110(5)(E). Section 3102(b) of the FFCRA amends the FMLA to require 
employees taking expanded family and medical leave to provide their 
employers with notice of leave as practicable, when the necessity for 
such leave is foreseeable.
    Section 826.100 lists documentation that an employee is required to 
provide the employer regarding the employee's need to take FFCRA leave, 
and states that such documentation must be provided ``prior to'' taking 
paid sick leave or expanded family and medical leave. The District 
Court held that the requirement that documentation be given ``prior 
to'' taking leave ``is inconsistent with the statute's unambiguous 
notice provision,'' which allows an employer to require notice of an 
employee's reason for taking leave only ``after the first workday (or 
portion thereof)'' for paid sick leave, or ``as is practicable'' for 
expanded family and medical leave taken for school, place of care, or 
child care provider closure or unavailability. New York, 2020 WL 
4462260, at *12.
    In keeping with the District Court's conclusion, the Department 
amends Sec.  826.100 to clarify that the documentation required under 
Sec.  826.100 need not be given ``prior to'' taking paid sick leave or 
expanded family and medical leave, but rather may be given as soon as 
practicable, which in most cases will be when the employee provides 
notice under Sec.  826.90. The Department is also revising Sec.  
826.90(b) to correct an

[[Page 57687]]

inconsistency regarding the timing of notice for employees who take 
expanded family and medical leave.
    Sections 826.90 and 826.100 complement one another. Section 826.90 
sets forth circumstances in which an employee who takes paid sick leave 
or expanded family and medical leave must give notice to his or her 
employer. Section 826.100 sets forth information sufficient for the 
employer to determine whether the requested leave is covered by the 
FFCRA. Section 826.100(f) also allows the employer to request an 
employee furnish additional material needed to support a request for 
tax credits under Division G of the FFCRA.
    Section 826.90(b) governs the timing and delivery of notice. 
Previous Sec.  826.90(b) stated, ``Notice may not be required in 
advance, and may only be required after the first workday (or portion 
thereof) for which an Employee takes Paid Sick Leave or Expanded Family 
and Medical Leave.'' This statement is correct with respect to paid 
sick leave. FFCRA section 5110(5)(E). However, section 110(c) of the 
FMLA, as amended by FFCRA section 3102, explicitly states that ``where 
the necessity for [expanded family and medical leave] is foreseeable, 
an employee shall provide the employer with such notice of leave as is 
practicable.'' Thus, for expanded family and medical leave, advance 
notice is not prohibited; it is in fact typically required if the need 
for leave is foreseeable. Revised Sec.  826.90(b) corrects this error 
by stating that advanced notice of expanded family and medical leave is 
required as soon as practicable; if the need for leave is foreseeable, 
that will generally mean providing notice before taking leave. For 
example, if an employee learns on Monday morning before work that his 
or her child's school will close on Tuesday due to COVID-19 related 
reasons, the employee must notify his or her employer as soon as 
practicable (likely on Monday at work). If the need for expanded family 
and medical leave was not foreseeable--for instance, if that employee 
learns of the school's closure on Tuesday after reporting for work--the 
employee may begin to take leave without giving prior notice but must 
still give notice as soon as practicable.
    Section 826.100(a) previously stated that an employee is required 
to give the employer certain documentation ``prior to taking Paid Sick 
Leave under the EPSLA or Expanded Family and Medical Leave under the 
EFMLEA.'' As noted above, the District Court held that the requirement 
that documentation be provided prior to taking leave ``is inconsistent 
with the statute's unambiguous notice provision,'' which allows an 
employer to require notice of an employee's reason for taking leave 
only ``after the first workday (or portion thereof)'' for paid sick 
leave, or ``as is practicable'' for expanded family and medical leave 
taken for school, place of care, or child care provider closure or 
unavailability. New York, 2020 WL 4462260, at *12. Accordingly, the 
Department is revising Sec.  826.100(a) to require the employee to 
furnish the listed information as soon as practicable, which in most 
cases will be when notice is provided under Sec.  826.90. That is to 
say, an employer may require an employee to furnish as soon as 
practicable: (1) The employee's name; (2) the dates for which leave is 
requested; (3) the qualifying reason for leave; and (4) an oral or 
written statement that the employee is unable to work. The employer may 
also require the employee to furnish the information set forth in Sec.  
826.100(b)-(f) at the same time.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, require the Department 
to consider the agency's need for its information collections and their 
practical utility, the impact of paperwork and other information 
collection burdens imposed on the public, and how to minimize those 
burdens. The Department has determined that this temporary rule does 
not add any new information collection requirements. The information 
collection associated with this temporary rule was previously approved 
by the Office of Management and Budget (OMB) under OMB control number 
1235-0031.

VII. Administrative Procedure Act

    This rule is issued without prior notice and opportunity to comment 
and with an immediate effective date pursuant to the Administrative 
Procedure Act (APA). 5 U.S.C. 553(b) and (d).

A. Good Cause To Forgo Notice and Comment Rulemaking

    The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule 
without prior notice and opportunity to comment when the agency, for 
good cause, finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' The FFCRA authorizes 
the Department to issue regulations under the EPSLA and the EFMLEA 
pursuant to the good cause exception of the APA. FFCRA sections 3102(b) 
(adding FMLA section 110(a)(3)), 5111.
    As it did in the initial April 1, 2020 temporary rule, the 
Department is bypassing advance notice and comment because of the 
exigency created by the COVID-19 pandemic, the time limited nature of 
the FFCRA leave entitlement which expires December 31, 2020, the 
uncertainty created by the August 3, 2020 district court decision 
finding certain portions of the April 1 rule invalid, and the regulated 
community's corresponding immediate need for revised provisions and 
explanations from the Department. A decision to undertake notice and 
comment rulemaking would likely delay final action on this matter by 
weeks or months, which would be counter to one of the FFCRA's main 
purposes in establishing paid leave: enabling employees to leave the 
workplace immediately to help prevent the spread of COVID-19 and to 
ensure eligible employees are not forced to choose between their 
paychecks and the public health measures needed to combat the virus. In 
sum, the Department determines that issuing this temporary rule as 
expeditiously as possible is in the public interest and critical to the 
Federal Government's relief and containment efforts regarding COVID-19.

B. Good Cause To Proceed With an Immediate Effective Date

    The APA also authorizes agencies to make a rule effective 
immediately, upon a showing of good cause, instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The FFCRA authorizes the Department to issue 
regulations that are effective immediately under the EPSLA and the 
EFMLEA pursuant to the good cause exception of the APA. FFCRA sections 
3102(b) (adding FMLA section 110(a)(3)), 5111; CARES Act section 
3611(1)-(2). For the reasons stated above, the Department has concluded 
it has good cause to make this temporary rule effective immediately and 
until the underlying statute sunsets on December 31, 2020.

VIII. Executive Order 12866, Regulatory Planning and Review; and 
Executive Order 13563, Improved Regulation and Regulatory Review

A. Introduction

    Under E.O. 12866, OMB's Office of Information and Regulatory 
Affairs (OIRA) determines whether a regulatory action is significant 
and therefore, subject to the requirements of the E.O. and OMB review. 
Section 3(f) of E.O. 12866 defines a ``significant regulatory

[[Page 57688]]

action'' as an action that is likely to result in a rule that (1) has 
an annual effect on the economy of $100 million or more, or adversely 
affects in a material way a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities (also referred to as 
economically significant); (2) creates serious inconsistency or 
otherwise interferes with an action taken or planned by another agency; 
(3) materially alters the budgetary impacts of entitlement grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) raises novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the E.O. As described below, this temporary rule is not economically 
significant. The Department has prepared a Regulatory Impact Analysis 
(RIA) in connection with this rule, as required under section 6(a)(3) 
of Executive Order 12866, and OMB has reviewed the rule. OIRA has 
designated this rule as not a ``major rule,'' as defined by 5 U.S.C. 
804(2).
    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; the regulation is tailored to impose the least burden on 
society, consistent with achieving the regulatory objectives; and in 
choosing among alternative regulatory approaches, the agency has 
selected those approaches that maximize net benefits. Executive Order 
13563 recognizes that some benefits are difficult to quantify and 
provides that, where appropriate and permitted by law, agencies may 
consider and discuss qualitatively values that are difficult or 
impossible to quantify, including equity, human dignity, fairness, and 
distributive impacts.

B. Overview of the Rule

    The temporary final rule promulgated by the Department in April 
2020 implemented the EPSLA and the EFMLEA, as modified by the CARES 
Act. The EPSLA requires that certain employers provide two workweeks 
(up to 80 hours) of paid sick leave to eligible employees who need to 
take leave from work for specified reasons related to COVID-19. The 
EFMLEA requires that certain employers provide up to 12 weeks of 
expanded family and medical leave to eligible employees who need to 
take leave from work because the employee is caring for his or her son 
or daughter whose school or place of care is closed or child care 
provider is unavailable due to COVID-19 related reasons. Payments from 
employers to employees for such paid leave, as well as allocable costs 
related to the maintenance of health benefits during the period of the 
required leave, is to be reimbursed by the Department of the Treasury 
via tax credits, up to statutory limits, as provided under the FFCRA.
    The Department is issuing this revised, new temporary rule, 
effective immediately, to reaffirm, revise, and clarify its 
regulations. The Department reaffirms that paid sick leave and expanded 
family and medical leave may be taken only if the employee has work 
from which to take leave, and that employees must receive employer 
approval to take paid sick leave or expanded family and medical leave 
intermittently. The Department narrows the definition of ``health care 
provider'' to employees who are health care providers under 29 CFR. 
825.125 and employees capable of providing health care services, 
meaning those who are employed to provide diagnostic services, 
preventive services, treatment services, or other services that are 
integrated with and necessary to the provision of patient care. In this 
rule, the Department also clarifies that the information the employee 
gives the employer to support the need for leave should be given as 
soon as practicable, and corrects an inconsistency regarding when an 
employee may be required to give notice of expanded family and medical 
leave to their employer.

C. Economic Impacts

1. Costs
    This rule revises and clarifies the temporary rule implementing the 
paid sick leave and expanded family and medical leave provisions of the 
FFCRA. The Department estimates that these revisions will result in 
additional rule familiarization costs to employers.
    The Department noted that according to the 2017 Statistics of U.S. 
Businesses (SUSB), there are 5,976,761 private firms in the U.S. with 
fewer than 500 employees.\33\ The Department estimates that all 
5,976,761 employers with fewer than 500 employees will need to review 
the rule to determine how and if their responsibilities have changed 
from the initial temporary rule. The Department estimates that these 
employers will likely spend fifteen minutes on average reviewing the 
new rule, and that this will be a one-time rule familiarization cost.
---------------------------------------------------------------------------

    \33\ Statistics of U.S. Businesses 2017, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html, 2017 SUSB Annual 
Data Tables by Establishment Industry.
---------------------------------------------------------------------------

    The Department's analysis assumes that the rule would be reviewed 
by Compensation, Benefits, and Job Analysis Specialists (SOC 13-1141) 
or employees of similar status and comparable pay. The median hourly 
wage for these workers is $31.04 per hour.\34\ In addition, the 
Department also assumes that benefits are paid at a rate of 46 percent 
\35\ and overhead costs are paid at a rate of 17 percent of the base 
wage, resulting in a fully-loaded hourly wage of $50.60.\36\ The 
Department estimates that the total rule familiarization cost to 
employers with fewer than 500 employees, who spend 0.25 hour reviewing 
the rule, will be $75,606,027 (5,976,761 firms x 0.25 hour x $50.60) in 
the first year. This results in a ten-year annualized cost of $10.1 
million at 7 percent and $8.6 million at 3 percent.
---------------------------------------------------------------------------

    \34\ Occupational Employment and Wages, May 2019, https://www.bls.gov/oes/2019/may/oes_nat.htm.
    \35\ The benefits-earnings ratio is derived from the Bureau of 
Labor Statistics' Employer Costs for Employee Compensation data 
using variables CMU1020000000000D and CMU1030000000000D.
    \36\ $31.04 + $31.04(0.46) + $31.04(0.17) = $50.60.
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    In the initial rule, the Department estimated the costs to 
employers of both documentation and of posting a notice, and 
qualitatively discussed managerial and operating costs and costs to the 
Department. The Department does not expect these revisions and 
clarifications to result in additional costs in any of these 
categories.
ii. Transfers
    In the initial temporary rule, the Department estimated that the 
transfers associated with this rule are the paid sick leave and 
expanded family and medical leave that employees will receive as a 
result of the FFCRA. The paid leave will initially be provided by 
employers, who will then be reimbursed by the Treasury Department 
through tax credits, up to statutory limits, which is then ultimately 
paid for by taxpayers. In the economic analysis of the initial 
temporary rule, the Department noted that it lacked data to determine 
which employees will need leave, and how many days of leave will 
ultimately be used. Because the share of employees who will use leave 
is likely to be only a partial share of those who are eligible, the 
Department was therefore unable to quantify the transfer of paid leave.
    Certain health care providers and emergency responders may be 
excluded from this group of impacted employees. This new rule limits 
the definition of health care provider to employees who are health care 
providers under 29 CFR 825.125 and other employees capable of

[[Page 57689]]

providing health care services, meaning those who are employed to 
provide diagnostic services, preventive services, treatment services, 
or other services that are integrated with and necessary to the 
provision of patient care. As discussed in the initial temporary rule, 
according to the SUSB data mentioned above, employers with fewer than 
500 employees in the health care and social assistance industry employ 
9.0 million workers.\37\ The Department estimated that this is likely 
to be the upper bound of potential excluded health care providers, 
because some of these employees' employers could decide not to exclude 
them from eligibility to use paid sick leave or expanded family and 
medical leave. In this new rule, the Department is narrowing the 
definition of health care provider, which means that fewer employees 
could potentially be excluded from receiving paid sick leave and 
expanded family and medical leave. If more employees are able to use 
this leave, transfers to employees will be higher. Because the 
Department lacks data on the number of workers who were potentially 
excluded under the prior definition, and how that number will change 
under the new definition, the Department is unable to quantify the 
change in transfers associated with this new rule. However, the 
Department does not expect that this new temporary rule will result in 
a transfer at or more than $100 million dollars annually.
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    \37\ A few estimates from other third party analyses confirm 
that this 9 million figure is reasonable. See Michelle Long and 
Matthew Rae, Gaps in the Emergency Paid Sick Leave Law for Health 
Care Workers, KFF, Jun. 17, 2020 (estimating that 8.1 million 
workers are subject to the exemption), available at https://www.kff.org/coronavirus-covid-19/issue-brief/gaps-in-emergency-paid-sick-leave-law-for-health-care-workers/; Sarah Jane Glynn, 
Coronavirus Paid Leave Exemptions Exclude Millions of Workers from 
Coverage, American Progress (Apr. 17, 2020) (estimating that 
8,984,000 workers are subject to the exemption), available at 
https://www.americanprogress.org/issues/economy/news/2020/04/17/483287/coronavirus-paid-leave-exemptions-exclude-millions-workers-coverage/.
---------------------------------------------------------------------------

iii. Benefits
    This new temporary rule will increase clarity for both employers 
and employees, which could lead to an increase in the use of paid sick 
leave and expanded family and medical leave. As discussed in the 
initial rule, the benefits of the paid sick leave and expanded family 
and medical leave provisions of the FFCRA are vast, and although unable 
to be quantified, are expected to greatly outweigh any costs of these 
provisions. With the availability of paid leave, sick or potentially 
exposed employees will be encouraged to stay home, thereby helping to 
curb the spread of the virus at the workplace. If employees still 
receive pay while on leave, they will benefit from being able to cover 
necessary expenses, and to continue to spend money to help support the 
economy. This will have spillover effects not only on the individuals 
who receive pay while on leave, but also to their communities and the 
national economy as a whole, which is facing unique challenges due to 
the COVID-19 global pandemic.

IX. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses. The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions. Agencies must perform a review to 
determine whether a proposed or final rule would have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 603 
and 604.
    As discussed above, the Department calculated rule familiarization 
costs for all 5,976,761 employers with and fewer than 500 employees. 
For the 5,755,307 employers with fewer than 50 employees, their one-
time rule familiarization cost would be $12.65.\38\ The Department 
calculated this cost by multiplying the 15 minutes of rule 
familiarization by the fully-loaded wage of a Compensation, Benefits, 
and Job Analysis Specialist (0.25 hour x $50.60). These estimated costs 
will be minimal for small business entities, and will be well below one 
percent of their gross annual revenues, which is typically at least 
$100,000 per year for the smallest businesses. Based on this 
determination, the Department certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \38\ Statistics of U.S. Businesses 2017, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html, 2017 SUSB Annual 
Data Tables by Establishment Industry.
---------------------------------------------------------------------------

X. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies 
to prepare a written statement for rules that include any federal 
mandate that may result in increased expenditures by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $165 
million ($100 million in 1995 dollars adjusted for inflation using the 
CPI-U) or more in at least one year. This statement must: (1) Identify 
the authorizing legislation; (2) present the estimated costs and 
benefits of the rule and, to the extent that such estimates are 
feasible and relevant, its estimated effects on the national economy; 
(3) summarize and evaluate state, local, and tribal government input; 
and (4) identify reasonable alternatives and select, or explain the 
non-selection, of the least costly, most cost-effective, or least 
burdensome alternative. Based on the cost analysis in this temporary 
rule, the Department determined that the rule will not result in Year 1 
total costs greater than $165 million.

XI. Executive Order 13132, Federalism

    This rule does not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order No. 13132, 64 FR 43255 (Aug. 4, 1999), this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

XII. Executive Order 13175, Indian Tribal Governments

    This rule would not have substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

List of Subjects in 29 CFR Part 826

    Wages.

    Signed at Washington, DC, this 10th day of September, 2020.
Cheryl M. Stanton,
Administrator, Wage and Hour Division.

    For the reasons set out in the preamble, the Department of Labor 
amends title 29 of the Code of Federal Regulations part 826 as follows:

PART 826--PAID LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE 
ACT

0
1. The authority citation for part 826 continues to read as follows:

    Authority: Pub. L. 116-127 sections 3102(b) and 5111(3); Pub. L. 
116-136 section 3611(7).


[[Page 57690]]



0
2. Amend Sec.  826.20 by revising paragraphs (a)(3) and (a)(4) and 
adding paragraph (a)(10), to read as follows:


Sec.  826.20   Paid leave entitlements.

    (a) * * *
    (3) Advised by a health care provider to self-quarantine. For the 
purposes of this section, the term health care provider has the same 
meaning as that term is defined in Sec.  825.102 and 825.125 of this 
chapter. An Employee may take Paid Sick Leave for the reason described 
in paragraph (a)(1)(ii) of this section only if:
    (i) A health care provider advises the Employee to self-quarantine 
based on a belief that:
    (A) The Employee has COVID-19;
    (B) The Employee may have COVID-19; or
    (C) The Employee is particularly vulnerable to COVID-19; and
    (ii) Following the advice of a health care provider to self-
quarantine prevents the Employee from being able to work, either at the 
Employee's normal workplace or by Telework. An Employee who is advised 
to self-quarantine by a health care provider may not take Paid Sick 
Leave where the Employer does not have work for the Employee.
    (4) Seeking medical diagnosis for COVID-19. An Employee may take 
Paid Sick Leave for the reason described in paragraph (a)(1)(iii) of 
this section if the Employee is experiencing any of the following 
symptoms:
    (i) Fever;
    (ii) Dry cough;
    (iii) Shortness of breath; or
    (iv) Any other COVID-19 symptoms identified by the U.S. Centers for 
Disease Control and Prevention.
    (v) Any Paid Sick Leave taken for the reason described in paragraph 
(a)(1)(iii) of this subsection is limited to time the Employee is 
unable to work because the Employee is taking affirmative steps to 
obtain a medical diagnosis, such as making, waiting for, or attending 
an appointment for a test for COVID-19. An Employee seeking medical 
diagnosis for COVID-19 may not take Paid Sick Leave where the Employer 
does not have work for the Employee.
* * * * *
    (10) Substantially similar condition. An Employee may take leave 
for the reason described in paragraph (a)(1)(vi) of this section if he 
or she has a substantially similar condition as specified by the 
Secretary of Health and Human Services, in consultation with the 
Secretary of the Treasury and the Secretary of Labor. The substantially 
similar condition may be defined at any point during the Effective 
Period, April 1, 2020, to December 31, 2020. An Employee may not take 
Paid Sick Leave for a substantially similar condition as specified by 
the Secretary of Health and Human Services where the Employer does not 
have work for the Employee.
* * * * *

0
3. Amend Sec.  826.30 by revising paragraph (c)(1) to read as follows:


Sec.  826.30   Employee eligibility for leave.

* * * * *
    (c) * * *
    (1) Health care provider--(i) Basic definition. For the purposes of 
Employees who may be exempted from Paid Sick Leave or Expanded Family 
and Medical Leave by their Employer under the FFCRA, a health care 
provider is
    (A) Any Employee who is a health care provider under 29 CFR 825.102 
and 825.125, or;
    (B) Any other Employee who is capable of providing health care 
services, meaning he or she is employed to provide diagnostic services, 
preventive services, treatment services, or other services that are 
integrated with and necessary to the provision of patient care and, if 
not provided, would adversely impact patient care.
    (ii) Types of Employees. Employees described in paragraph 
(c)(1)(i)(B) include only:
    (A) Nurses, nurse assistants, medical technicians, and any other 
persons who directly provide services described in (c)(1)(i)(B);
    (B) Employees providing services described in (c)(1)(i)(B) of this 
section under the supervision, order, or direction of, or providing 
direct assistance to, a person described in paragraphs (c)(1)(i)(A) or 
(c)(1)(ii)(A) of this section; and
    (C) Employees who are otherwise integrated into and necessary to 
the provision of health care services, such as laboratory technicians 
who process test results necessary to diagnoses and treatment.
    (iii) Employees who do not provide health care services as 
described above are not health care providers even if their services 
could affect the provision of health care services, such as IT 
professionals, building maintenance staff, human resources personnel, 
cooks, food services workers, records managers, consultants, and 
billers.
    (iv) Typical work locations. Employees described in paragraph 
(c)(1)(i) of this section may include Employees who work at, for 
example, a doctor's office, hospital, health care center, clinic, 
medical school, local health department or agency, nursing facility, 
retirement facility, nursing home, home health care provider, any 
facility that performs laboratory or medical testing, pharmacy, or any 
similar permanent or temporary institution, facility, location, or site 
where medical services are provided. This list is illustrative. An 
Employee does not need to work at one of these facilities to be a 
health care provider, and working at one of these facilities does not 
necessarily mean an Employee is a health care provider.
    (v) Further clarifications. (A) Diagnostic services include taking 
or processing samples, performing or assisting in the performance of x-
rays or other diagnostic tests or procedures, and interpreting test or 
procedure results.
    (B) Preventive services include screenings, check-ups, and 
counseling to prevent illnesses, disease, or other health problems.
    (C) Treatment services include performing surgery or other invasive 
or physical interventions, prescribing medication, providing or 
administering prescribed medication, physical therapy, and providing or 
assisting in breathing treatments.
    (D) Services that are integrated with and necessary to diagnostic, 
preventive, or treatment services and, if not provided, would adversely 
impact patient care, include bathing, dressing, hand feeding, taking 
vital signs, setting up medical equipment for procedures, and 
transporting patients and samples.
    (vi) The definition of health care provider contained in this 
section applies only for the purpose of determining whether an Employer 
may elect to exclude an Employee from taking leave under the EPSLA and/
or the EFMLEA, and does not otherwise apply for purposes of the FMLA or 
section 5102(a)(2) of the EPSLA.
* * * * *

0
4. Amend Sec.  826.90 by revising paragraph (b) to read as follows:


Sec.  826.90   Employee notice of need for leave.

* * * * *
    (b) Timing and delivery of notice. Notice may not be required in 
advance, and may only be required after the first workday (or portion 
thereof) for which an Employee takes Paid Sick Leave. After the first 
workday, it will be reasonable for an Employer to require notice as 
soon as practicable under the facts and circumstances of the particular 
case. Generally, it will be reasonable for notice to be given by the 
Employee's spokesperson (e.g., spouse, adult family member, or other 
responsible party) if the Employee is unable to do so personally. 
Notice for taking Expanded

[[Page 57691]]

Family and Medical Leave is required as soon as practicable. If the 
reason for this leave is foreseeable, it will generally be practicable 
to provide notice prior to the need to take leave.
* * * * *

0
5. Amend Sec.  826.100 by revising paragraph (a) to read as follows:


Sec.  826.100   Documentation of need for leave.

    (a) An Employee is required to provide the Employer documentation 
containing the following information as soon as practicable, which in 
most cases will be when the Employee provides notice under Sec.  
826.90:
    (1) Employee's name;
    (2) Date(s) for which leave is requested;
    (3) Qualifying reason for the leave; and
    (4) Oral or written statement that the Employee is unable to work 
because of the qualified reason for leave.
* * * * *
[FR Doc. 2020-20351 Filed 9-11-20; 5:00 pm]
BILLING CODE 4510-27-P