UPDATE: April 6, 2020: A U.S. Department of Labor spokesperson sent the following statement to HR Dive: "The Department's quick action to implement paid sick leave and expanded paid family and medical leave provides necessary support for America's workforce in uncertain times." The law "empowers" employers to provide leave that gives workers flexibility to make the best decisions for their workplaces and families, the spokesperson said.
"The Department's rulemaking and guidance on the FFCRA will help employers comply with the law, ensuring that workers receive the paid leave they and their families need to remain healthy during the crisis."
- The U.S. Department of Labor's (DOL) novel coronavirus leave guidance contradicts the language of the law and "violate[s] congressional intent," two democratic lawmakers wrote in a letter to Secretary of Labor Eugene Scalia Wednesday.
- Rep. Rosa DeLauro, D-Conn., and Sen. Patty Murray, D-Wash., took aim at DOL's Q&A document on the Families First Coronavirus Relief Act (FFCRA) Specifically, the letter takes issue with DOL's language regarding: certification of the need for paid sick leave under the FFCRA; the requirement that an employer have work for an employee in order for the employee to qualify for leave; the suggestion that an employee may take intermittent paid leave only if an employer allows it; and the agency's use of two different definitions for "health care provider" in the context of FFCRA regs. DOL's guidance on these subjects either deviates from the text of the FFCRA or does not have a basis in that text, the lawmakers said.
- The letter asked the agency to revise its materials in accordance with the text and congressional intent. A DOL spokesperson did not return an HR Dive request for comment on the letter.
A number of items spelled out in the Q&A document were also included later in DOL's temporary rulemaking, announced April 1. The rule expanded on how the provisions of the FFCRA would work in practice, Chai Feldblum, partner at Morgan Lewis and former commissioner of the U.S. Equal Employment Opportunity Commission, told HR Dive in an interview.
But the rule spelled out those provisions in ways that were either more narrow or, in some cases, more expansive, she said. An example of the former is the FFCRA's paid sick time, which can be used to care for another individual subject to a quarantine or isolation, or who has been advised by a healthcare provider to self-quarantine due to COVID-19. DOL's rule, however, specified that the individual must be someone with whom an employee has a "personal relationship," i.e. a family member, roommate or similar person.
An example in which DOL adopted a more expansive view of an FFCRA provision is in its interpretation of "son or daughter" as it pertains to the law's emergency paid leave under the Family and Medical Leave Act (FMLA), Feldblum said. The text of the law specified that an employee may take the leave to care for a son or daughter under 18 years of age if that child's school or place of care has closed, or if their child care provider is unavailable. But the FMLA's definition of "son or daughter" includes children 18 years of age and older incapable of self-care because of mental or physical disability. DOL said in the rule that it would use the FMLA's existing definition to include such children in its enforcement of the expanded FMLA leave to ensure consistency.
Murray and DeLauro also said in their letter that DOL's Q&A guidance does not clarify whether a government order directing employees to stay home and not attend work qualifies as a "quarantine or isolation" under the FFCRA.
While the Q&A document says that a local quarantine or isolation order as defined in the FFCRA includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any federal, state, or local governments that cause employees to be unable to work or to telework, the April 1 regulation, which came later, said that an employee placed under such an order would not qualify for leave if their employer does not have work for the employee to perform.
"Nothing in the text of the FFCRA indicates the employer must have work for an employee to perform on any particular day for that employee to be able to qualify for paid leave on that day— nor does it give employers the authority to refuse their employees their statutory right to paid leave by not assigning them work, furloughing them, or closing a particular worksite," Murray and DeLauro said. "This inaccurate conclusion would allow all employers to evade the requirements of the Act at any point during this pandemic by informing employees that it does not have work for them to perform at the moment—thereby fully depriving them of a day, a week, or 12 weeks of paid leave."
Congress has authority to pass statues that expand or contract agency authority, repeal existing rules or compel an agency to issue certain rules, according to the Congressional Research Service. It also can use the Congressional Review Act to overturn rules through enactment of a joint resolution of disapproval, according to the service.