September 15, 2020

COVID-19: Updated DOL Guidance on Intermittent Leave

The Department of Labor has now issued updated guidance relative the use of intermittent leave under the Families First Coronavirus Response Act (FFCRA).  Intermittent leave is leave taken in separate blocks of time, rather than one continuous period, but still due to a single qualifying event.  The DOL’s updated guidance provides further explanation for its limitations on the use of this type of leave and specifically addresses the use of intermittent leave in light of the new school year. 

As outlined in our prior article, the issuance of the new DOL rule resulted from the decision in New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020), which struck a number of provisions from the prior rule.  One of the criticisms the court had in that case was that the DOL first required employer consent before an employee could use FFRCA leave intermittently.  The DOL has now issued its new rule addressing this criticism and reiterating that employer consent is still required for use of intermittent leave.

The DOL first explained that its regulations at 29 C.F.R. § 826.50 allow an employee to use leave under the FFCRA intermittently only when it is used to care for a his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19, and only where the employer also consents to the use of the leave in this fashion.  Because EFMLEA leave is only permitted to care for a child in this fashion, it may always potentially be taken intermittently.  However, as it relates to EPSL, caring for a child is only one of six possible qualifying reasons for the use of leave.  The DOL did not permit the use of intermittent leave under these other reasons because doing so would increase of COVID-19 transmission if employees using such leave would return to work at a physical location.  The one exception is for employees that only work remotely; these employees may use intermittent leave for any qualifying reason under the FFCRA, if the employer consents.

Second, the DOL also reaffirmed that requiring employer consent is appropriate.  Under the FMLA, allowing the use of intermittent leave is a balance between the interests of the employee and the prevention of business disruptions for the employer.  The DOL noted that employer consent is required to use intermittent leave to care for a newborn child under the FMLA, and this is similar to the need for leave to care for a child under the FFCRA.  Furthermore, for remote employees, the FFRCA regulations only permit an employee to telework where the employer permits such work.  Therefore, requiring consent for the use of intermittent leave for such employees aligns the requirements for similar circumstances. 

Lastly, the DOL outlined specific guidance for the use of intermittent leave relative to the reopening of schools, as follows:

a.  Hybrid Schedules.  Where a school operates only on an “alternative day” or “hybrid schedule” (where a child is present at school on one day, but the school is closed to that child on another) employer consent for the use of intermittent leave is NOT required.  This is because each day of school closure represents a separate qualifying reason for FFCRA leave. 

b.  Reduced School Hours.  For the same reasons as above, where a school requires students to attend physical classes for only half the day, etc., an employee does NOT need employer consent to use leave for the periods of time the child in not in class on those days.

c.  Physical Location Closed.  Employer consent IS REQUIRED for intermittent leave where the school is closed for a sustained period of time, but the employee wishes to take FFCRA leave only for portions of that period (for reasons other than the school’s in-person instruction schedule).

d.  Choice of Remote Learning.  While not specifically addressed in the new rule, the DOL has previously issued updated FAQs explaining that FFCRA leave is NOT permitted to be used (whether intermittent or otherwise) where the school provides a choice to allow in-person instruction or remote learning, and the employee/child chooses remote learning.  In this instance, the school is not “closed” to the child. 

However, FFCRA leave may be permitted if the child is not attending school for reasons that might trigger another qualifying reason (such as if the employee needs to care for a child who has been advised to quarantine due to COVID-19, etc.). 

If you have questions or are in need of assistance in addressing possible intermittent FFCRA leave issues or requests, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.