Does the DOL Really Know Its Own FMLA Regulations?

By Fiona W. Ong - Shawe Rosenthal LLP

October 6, 2020

OK, I’m a bit of a nerd about the Family and Medical Leave Act (FMLA) and its regulations. And I would expect the Department of Labor to be the same. After all, they wrote the regulations! But I feel like they might have missed the boat a bit with their recent revisions to the Final Rule implementing the Families First Coronavirus Response Act (FFCRA).

Now, employers with 500 or fewer employees know that the FFCRA imposed a new paid sick leave mandate and expanded the use of FMLA for certain COVID-19-related reasons. The DOL issued a Final Rule on April Fool’s Day to provide guidance on implementing the FFCRA, Among other things, the DOL stated that employees are not entitled to take FFCRA leave if their employer “does not have work for them.”  And in its Q&A’s on the FFCRA, the DOL explained that this applied if the employer had to temporarily cease operations because of governmental shut-down orders, and also if the employee was placed on temporary layoff or furlough.

This “work availability” requirement was challenged by the State of New York in a lawsuit. And in early August, a federal court threw out the work availability requirement, finding the DOL’s explanation for the requirement to be “patently deficient.”

In response to the court’s ruling, the DOL issued a revised Final Rule in September. As we previously explained, the DOL doubled down on the work availability requirement and sought to validate its original position by providing a detailed explanation of its reasoning.

In the commentary to the revised Final Rule, the DOL explained that the language of the FFCRA provides for leave where the employee is unable to work (or telework) due to a need for leave “because” of or “due to” a qualifying reason for leave. The DOL found that this language established a “but-for” standard – meaning that the qualifying reason must be the only reason that the employee was unable to work.  In this context, therefore, the DOL explained that, “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. Instead, the individual would have no work from which to take leave.”

The DOL asserted that this interpretation is consistent with the regular FMLA regulations. It then cited to § 825.200(h), for the principle that “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.’”

Now, § 825.200(h) states as follows:

For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement….

This was an excellent citation. It makes the point, although in the context of how to count FMLA leave, as opposed to the direct question of when an employee is entitled to FMLA leave. And it falls in the middle of a paragraph about other situations, at the end of a very lengthy regulation on “Amount of Leave,” § 825.200.

So I wondered why the DOL failed to cite to another FMLA regulation that makes the point much more pointedly and directly – § 825.112 “Qualifying reasons for leave, general rule,” which I noticed when recently re-reading the regulations (I said I was a nerd, ok?). Section (c) of this regulation states:

Active employee. In situations where the employer/employee relationship has been interrupted, such as an employee who has been on layoff, the employee must be recalled or otherwise be re-employed before being eligible for FMLA leave. Under such circumstances, an eligible employee is immediately entitled to further FMLA leave for a qualifying reason.

Now, I think the DOL got to the right result, but I do wonder how and why they missed this very helpful regulation in seeking to buttress its reasoning for the FFCRA work availability requirement. Admittedly, the FMLA regulations are very long. When I printed them out, they came to 172 pages. In small print. Single-spaced. So I suppose it was pretty easy to overlook. Plus, I know the DOL really rushed to get this much-needed guidance out (normally, it takes many months, if not more than a year, to prepare and issue regulations).

But the fact that the DOL overlooked its own already-existing regulation – and missed adding significant support to its work availability rationale – does put a little fear into my heart… Shouldn’t the DOL, if anyone, know what’s in its own regs?!!