Paid Leave Under the Families First Coronavirus Response Act (rule, 85 FR 57677, September 16, 2020)
Summary
A temporary rule from the Department of Labor's Wage and Hour Division revising and clarifying its rule of April 1, 2020 implementing emergency paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). It was published in the Federal Register on September 16, 2020 (Vol. 85, No. 180). The State of New York had sued, and in a decision of August 3, 2020, the District Court for the Southern District of New York found certain portions of the rule invalid. The Department reaffirms that leave is available only if the employer has work for the employee. It also revises the definition of health care provider who may be excluded from leave and clarifies when an employee must give notice of expanded family and medical leave.
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Cite this document
“Paid Leave Under the Families First Coronavirus Response Act (rule, 85 FR 57677, September 16, 2020).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/paid-leave-under-the-families-first-coronavirus-response-act-rule-85-f-52aa01e81a/
, SHA-256 6ea00363c287ffb2ccf616a02dd36e100eb6458880c84d2b9d8c1dc2f41f6d3c.Full text
Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57677
Designated Altitudes. 2,500 feet MSL to but leave to assist working families facing Federal, state, or local quarantine or
not including 5,000 feet MSL. public health emergencies arising out of isolation order related to COVID–19 or
Times of designation. From 0600 to 1800 the Coronavirus Disease 2019 (COVID– who has been advised by a health care
local time, daily, or other times as specified 19) global pandemic, in response to an provider to self-quarantine due to
by NOTAM issued 48 hours in advance.
Controlling agency. FAA, Boston Approach
August 3, 2020 district court decision COVID–19 concerns; (5) caring for the
Control. finding certain portions of that rule employee’s son or daughter whose
Using agency. Commander, U.S. Army invalid. Both types of emergency paid school, place of care, or child care
Garrison, Camp Edwards, MA. leave were created by a time-limited provider is closed or unavailable due to
statutory authority established under COVID–19 related reasons; and (6)
R–4101C Camp Edwards, MA [New]
the Families First Coronavirus Response experiencing any other substantially
Boundaries. Beginning at lat. 41°40′52″ N, Act (FFCRA), and are set to expire on similar condition as specified by the
long. 70°33′07″ W; to lat. 41°41′01″ N, long. December 31, 2020. The FFCRA and its Secretary of Health and Human Services
70°33′58″ W; to lat. 41°41′58″ N, long. (HHS).1 FFCRA section 5102(a)(1)–(6).
70°34′56″ W; to lat. 41°42′52″ N, long.
implementing regulations, including
70°34′56″ W; to lat. 41°43′52″ N, long. this temporary rule, do not affect the Division C of the FFCRA, ‘‘The
70°34′30″ W; to lat. 41°44′30″ N, long. FMLA after December 31, 2020. Emergency Family and Medical Leave
70°34′14″ W; to lat. 41°45′17″ N, long. DATES: This rule is effective from Expansion Act’’ (EFMLEA), which
70°34′11″ W; to lat. 41°45′12″ N, long. September 16, 2020 through December amends Title I of the Family and
70°33′59″ W; to lat. 41°46′07″ N, long. 31, 2020. Medical Leave Act, 29 U.S.C. 2601 et
70°33′02″ W; to lat. 41°45′18″ N, long. seq. (FMLA), permits certain employees
FOR FURTHER INFORMATION CONTACT:
70°31′16″ W; to lat. 41°44′37″ N, long. of covered employers to take up to 12
70°30′40″ W; to lat. 41°44′11″ N, long. Amy DeBisschop, Director, Division of
weeks of expanded family and medical
70°29′38″ W; to lat. 41°43′06″ N, long. Regulations, Legislation, and
leave, ten of which are paid, if the
70°30′06″ W; to lat. 41°43′07″ N, long. Interpretation, Wage and Hour Division,
employee is unable to work due to a
70°30′34″ W; to lat. 41°42′45″ N, long. U.S. Department of Labor, Room S–
70°30′48″ W; to lat. 41°42′38″ N, long. need to care for his or her son or
3502, 200 Constitution Avenue NW,
70°30′31″ W; to lat. 41°41′51″ N, long. daughter whose school, place of care, or
Washington, DC 20210, telephone: (202)
70°30′50″ W; to lat. 41°41′38″ N, long. child care provider is closed or
693–0406 (this is not a toll-free
70°31′16″ W; to lat. 41°41′20″ N, long. unavailable due to COVID–19 related
number). Copies of this final rule may
70°31′27″ W; to lat. 41°41′18″ N, long. reasons. FFCRA section 3012, adding
70°31′24″ W; to lat. 41°41′06″ N, long.
be obtained in alternative formats (Large
FMLA section 110(a)(2)(A).
70°31′52″ W; to the point of beginning. Print, Braille, Audio Tape or Disc), upon These paid sick leave and expanded
Designated Altitudes. 5,000 feet MSL to request, by calling (202) 693–0675 (this family and medical leave requirements
9,000 feet MSL. is not a toll-free number). TTY/TDD will expire on December 31, 2020. The
Times of designation. By NOTAM issued callers may dial toll-free 1–877–889– costs to private-sector employers of
48 hours in advance. 5627 to obtain information or request
Controlling agency. FAA, Boston Approach providing paid leave required by the
materials in alternative formats. EPSLA and the EFMLEA (collectively
Control. Questions of interpretation and/or
Using agency. Commander, U.S. Army ‘‘FFCRA leave’’) are ultimately covered
enforcement of the agency’s regulations
Garrison, Camp Edwards, MA. by the Federal Government as Congress
may be directed to the nearest WHD
* * * * * provided tax credits for these employers
district office. Locate the nearest office
in the full amount of any FFCRA leave
Issued in Washington, DC, on August 28, by calling WHD’s toll-free help line at
taken by their employees. On March 27,
2020. (866) 4US–WAGE ((866) 487–9243)
2020, President Trump signed into law
Scott M. Rosenbloom, between 8 a.m. and 5 p.m. in your local
the Coronavirus Aid, Relief, and
Acting Manager, Rules and Regulations time zone, or log onto WHD’s website
Economic Security Act, Public Law
Group. for a nationwide listing of WHD district
116–136 (CARES Act), which amends
[FR Doc. 2020–19467 Filed 9–15–20; 8:45 am] and area offices at http://www.dol.gov/
certain provisions of the EPSLA and the
whd/america2.htm.
BILLING CODE 4910–13–P provisions of the FMLA added by the
SUPPLEMENTARY INFORMATION: EFMLEA.
I. Background FFCRA leave is part of a larger set of
DEPARTMENT OF LABOR Federal Government-provided COVID–
On March 18, 2020, President Trump 19 economic relief programs, which also
Wage and Hour Division signed into law the FFCRA, which include the Paycheck Protection
creates two new emergency paid leave Program and expanded unemployment
29 CFR Part 826 requirements in response to the COVID– benefits provided under the CARES Act.
19 global pandemic. Division E of the The Paycheck Protection Program,
RIN 1235–AA35 FFCRA, ‘‘The Emergency Paid Sick CARES Act sections 1101–1114,
Leave Act’’ (EPSLA), entitles certain provided an incentive for employers to
Paid Leave Under the Families First
employees of covered employers to take keep workers on their payrolls. FFCRA
Coronavirus Response Act
up to two weeks of paid sick leave if the leave provides paid leave to certain
AGENCY: Wage and Hour Division, employee is unable to work for specific employees who continue to be
Department of Labor. qualifying reasons related to COVID–19. employed but are prevented from
ACTION: Temporary rule. These qualifying reasons are: (1) Being working for specific COVID–19 related
subject to a Federal, state, or local reasons. And the CARES Act’s
SUMMARY: The Secretary of Labor quarantine or isolation order related to expanded unemployment benefits,
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(‘‘Secretary’’) is promulgating revisions COVID–19; (2) being advised by a health CARES Act sections 2101–2116,
and clarifications to the temporary rule care provider to self-quarantine due to provided help to workers whose
issued on April 1, 2020, implementing COVID–19 concerns; (3) experiencing
public health emergency leave under COVID–19 symptoms and seeking a 1 The Secretary of HHS has not identified any
Title I of the Family and Medical Leave medical diagnosis; (4) caring for another other substantially similar condition that would
Act (FMLA) and emergency paid sick individual who is either subject to a entitle an employee to take paid sick leave.
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57678 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
positions have been affected by COVID– employees who take FFCRA leave must employee must give the employer to
19. Together, these three programs provide their employers with certain support the need for his or her leave
provide relief with respect to: (1) documentation before taking leave. New should be provided to the employer as
Employed individuals whose employers York v. U.S. Dep’t of Labor, No. 20–CV– soon as practicable.
continue to pay them; (2) employed 3020 (JPO), 2020 WL 4462260 (S.D.N.Y. 5. The Department revises § 826.90 to
individuals who must take leave from Aug. 3, 2020).2 correct an inconsistency regarding when
work; and (3) unemployed individuals The Department has carefully an employee may be required to give
who no longer had work or had as much examined the District Court’s opinion notice of expanded family and medical
work. and has reevaluated the portions of the leave to his or her employer.
The FFCRA grants authority to the temporary rule that the court held were
Secretary to issue regulations for certain invalid. Given the statutory II. Reaffirming and Explaining the
purposes. Section 3102(b) of the FFCRA, authorization to invoke exemptions Work-Availability Requirement Under
as amended by section 3611(7) of the from the usual requirements to engage § 826.20, Consistent With Supreme
CARES Act, and 5111(3) of the FFCRA in notice-and-comment rulemaking and Court Precedent and FMLA Principles
grant the Secretary authority to issue to delay a rule’s effective date, see The Department’s April 1, 2020 rule
regulations ‘‘as necessary, to carry out FFCRA sections 3102(b), 5111, the time- stated that an employee is entitled to
the purposes of this Act, including to limited nature of the FFCRA leave FFCRA leave only if the qualifying
ensure consistency’’ between the benefits, the urgency of the COVID–19 reason is a but-for cause of the
EPSLA, the EFMLEA, and the Act’s tax pandemic and the associated need for employee’s inability to work. 85 FR
credit reimbursement provisions. Due to FFCRA leave, and the pressing need for 19329. In other words, the qualifying
the exigency created by COVID–19, the clarity in light of the District Court’s reason must be the actual reason the
FFCRA authorizes the Secretary to issue decision, the Department issues this employee is unable to work, as opposed
EPSLA and EFMLEA regulations under temporary rule, effective immediately, to a situation in which the employee
two exceptions to the usual to reaffirm its regulations in part, revise would have been unable to work
requirements of the Administrative its regulations in part, and further regardless of whether he or she had a
Procedure Act (APA), 5 U.S.C. 551 et explain its positions. In summary: FFCRA qualifying reason. This means
seq. One of those exceptions permits 1. The Department reaffirms that paid an employee cannot take FFCRA paid
issuing a rule without prior public sick leave and expanded family and leave if the employer would not have
notice or the opportunity for the public medical leave may be taken only if the had work for the employee to perform,
to comment if there is good cause to employee has work from which to take even if the qualifying reason did not
believe that doing so is ‘‘impractical, leave and explains further why this apply. Id. This work-availability
unnecessary, or contrary to the public requirement is appropriate. This requirement was explicit in the
interest’’; the other permits a rule to temporary rule clarifies that this regulatory text as to three of the six
become effective immediately, rather requirement applies to all qualifying qualifying reasons for leave.4 As
than after a 30-day delay, if there is reasons to take paid sick leave and explained below, the Department’s
good cause to do so. FFCRA sections expanded family and medical leave. intent, despite not explicitly including
3102(b) (as amended by section 3611(7) 2. The Department reaffirms that, the work-availability requirement in the
of the CARES Act), 5111 (referring to 5 where intermittent FFCRA leave is regulatory text regarding the other three
U.S.C. 553(b)(B) and (d)(3)). Relying on permitted by the Department’s qualifying reasons, was to apply the
those exceptions, the Department regulations, an employee must obtain requirement to all reasons.
promulgated a temporary rule to carry his or her employer’s approval to take The work-availability requirement
out the EPLSA and EFMLEA, which was paid sick leave or expanded family and and the but-for causation standard that
made public on April 1, 2020. 85 FR medical leave intermittently under undergirds it were part of the legal
19326 (published April 6, 2020); see § 825.50 and explains further the basis challenge to the rule. New York, 2020
also 85 FR 20156–02 (April 10, 2020 for this requirement. WL 4462260 at *6–7. The FFCRA uses
correction and correcting amendment to 3. The Department revises the the words ‘‘because’’ and ‘‘due to’’ in
April 1 rule). definition of ‘‘health care provider’’ identifying the reasons for which an
On April 14, 2020, the State of New under § 825.30(c)(1) to mean employees employee may take FFCRA leave. See
York filed suit in the United States who are health care providers under 29 FFCRA sections 3102 and 5102(a). The
District Court for the Southern District CFR 825.102 and 825.125,3 and other District Court held that the FFCRA’s use
of New York (‘‘District Court’’) employees who are employed to provide of ‘‘because’’ and ‘‘due to’’ in referring
challenging certain parts of the diagnostic services, preventive services,
temporary rule under the APA. On to the reasons an employee is unable to
treatment services, or other services that work or telework were ambiguous as to
August 3, 2020, the District Court ruled are integrated with and necessary to the
that four parts of the temporary rule are the causation standard imposed and
provision of patient care. further concluded that the work-
invalid: (1) The requirement under 4. The Department revises § 826.100
§ 826.20 that paid sick leave and availability requirement was invalid for
to clarify that the information the
expanded family and medical leave are 4 Compare § 826.20(a)(2), (6) and (9) (applying
available only if an employee has work 2 The District Court invalidated § 826.20 because
requirement to leave due to a government
from which to take leave; (2) the the Department did not sufficiently explain the quarantine or isolation order, to care for a person
requirement under § 826.50 that an positions taken in that provision and because the subject to such an order or who has been advised
regulatory text explicitly applied the work by a health care provider to self-quarantine, and to
employee may take FFCRA leave availability requirement only to three of the six care for the employee’s child whose school or place
intermittently only with employer qualifying reasons for taking FFCRA leave, § 826.50 of care is closed or child care provider is
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approval; (3) the definition of an because the Department did not sufficiently explain unavailable, respectively) with § 826.20(a)(3), (4),
employee who is a ‘‘health care the positions taken in that provision, and and (1)(vi) (no language applying requirement to
provider,’’ set forth in § 826.30(c)(1), §§ 826.30(c)(1) and .100 as being inconsistent with leave due to being advised by a health care provider
the statute. Id. at *8–12. to self-quarantine, to having COVID–19 symptoms
whom an employer may exclude from 3 The definition of ‘‘health care provider’’ under and seeking a diagnosis, or to other substantially
being eligible for FFCRA leave; and (4) § 825.102 is identical to the definition under similar conditions defined by the Department of
the statement in § 826.100 that § 825.125. Health and Human Services, respectively).
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57679
two reasons. One, the Department’s the event would have occurred due to permanently)—that qualifying reason
explicit application of the requirement another sufficient cause.9 The District could not be a but-for cause of the
to only three of the six reasons for Court recognized that the ‘‘traditional employee’s inability to work.11 Instead,
taking leave was unreasoned and meaning of ‘because’ (and ‘due to’) the individual would have no work
inconsistent with the statutory text; two, implies a but-for causal relationship,’’ from which to take leave. The
the Department did not sufficiently but concluded that these terms’ use in Department thus reaffirms that an
explain the reason for imposing this the FFCRA did not necessarily foreclose employee may take paid sick leave or
requirement at all. Id. at *7–9. a different interpretation. New York, expanded family and medical leave only
The Department has carefully 2020 WL 4462260, at *7. to the extent that any qualifying reason
considered the District Court’s opinion After considering the District Court’s is a but-for cause of his or her inability
and now provides a fuller explanation conclusion that the statute does not to work. Because the Department agrees
for its original reasoning regarding the necessarily require the traditional result, with the District Court that there is no
work-availability requirement. With this the Department continues to believe that basis, statutory or otherwise, to apply
revised rule, the Department explains the traditional meaning of ‘‘because’’ the work-availability requirement only
why it continues to interpret the FFCRA and ‘‘due to’’ as requiring but-for to some of the qualifying reasons for
to impose a but-for causation standard causation is the best interpretation of FFCRA leave, and in keeping with the
that in turn supports the work- the FFCRA leave provisions in this Department’s original intent, the
availability requirement for all context. This standard is especially Department amends § 826.20(a)(3), (a)(4)
qualifying reasons for leave.5 Further, compelling in light of Supreme Court to state explicitly, as § 826.20(a)(2), (6),
the Department revises § 826.20 to precedent applying the ‘‘ordinary and (9) do, that an employee is not
explicitly include the work-availability meaning’’ of but-for causation where the eligible for paid leave unless the
requirement in all qualifying reasons for underlying statute did not specify an employer would otherwise have work
leave. alternative standard. Burrage v. United for the employee to perform. The
The FFCRA states that an employer States, 571 U.S. 204, 216 (2014) Department similarly adds
shall provide its employee FFCRA leave (‘‘Congress could have written [a § 826.20(a)(10) to make clear such
to the extent that the employee is unable statute] to impose a mandatory requirement is likewise needed when an
to work (or telework) due to a need for minimum when the underlying crime employee requests paid leave for a
leave ‘‘because’’ of or ‘‘due to’’ a ‘contributes to’ death or serious bodily substantially similar condition as
qualifying reason for leave under injury, or adopted a modified causation specified by the Secretary of Health and
FFCRA sections 3102 and 5102(a).6 The test tailored to cases involving Human Services.12
terms ‘‘because,’’ ‘‘due to,’’ and similar concurrent causes . . . . It chose The Department’s continued
statutory phrases have been repeatedly instead to use language that imports but- application of the work-availability
interpreted by the Supreme Court to for causality.’’). Here too, the requirement is further supported by the
require ‘‘but-for’’ causation.7 ‘‘[A]n act Department sees no textual basis or fact that the use of the term ‘‘leave’’ in
is not a ‘but-for’ cause of an event if the other persuasive reason to deviate from the FFCRA is best understood to require
event would have occurred even in the the standard meanings of these terms.10 that an employee is absent from work at
absence of the act[,]’’ 8 including where The Department’s regulations thus a time when he or she would otherwise
interpret the FFCRA to require that an have been working. As to this point, the
5 To the extent that the District Court required
employee may take paid sick leave or District Court concluded that the statute
addition or further explanation of the Department’s
final action in promulgating this rule, the additional expanded family and medical leave only did not mandate such an interpretation.
explanation here should be read as a supplement to the extent that a qualifying reason for New York, 2020 WL 4462260, at *7–8.
to—and not a replacement of—the discussion of such leave is a but-for cause of his or After reconsideration, the Department
causation included in the April 1 temporary rule. her inability to work.
6 The statute’s use of the mandatory language now reaffirms that even if ‘‘leave’’ could
‘‘shall,’’ in setting forth the employer’s obligation,
In the FFCRA context, if there is no encompass time an employee would not
FFCRA section 5102(a), 29 U.S.C. 2612(a), is work for an individual to perform due have worked regardless of the relevant
therefore limited by prerequisites: What the to circumstances other than a qualifying qualifying reason, the Department,
employer is obligated to provide to employees is reason for leave—perhaps the employer
‘‘leave’’ and the employer’s obligation is triggered based in significant part on its
only when the employee’s need for leave is because
closed the worksite (temporarily or experience administering and enforcing
of one of the qualifying reasons. These other mandatory leave requirements,
prerequisites, set forth in the plain text, to that [the decedent] would have lived but for his
employers having an obligation to provide FFCRA heroin use’’’).
interprets the FFCRA as allowing
leave are unaffected by the fact that the FFCRA 9 See Brandt v. Fitzpatrick, 957 F.3d 67, 76 (1st employees to take paid leave only if
elsewhere provides certain exceptions to that Cir. 2020) (employer may avoid damages in an they would have worked if not for the
obligation (e.g., the health care provider exception). employment discrimination case ‘‘if it can show it qualifying reason for leave. ‘‘Leave’’ is
7 See, e.g., Burrage v. United States, 571 U.S. 204, would have made the same decision even if race most simply and clearly understood as
211 (2014) (the phrase ‘‘results from’’ in a criminal hadn’t factored in (meaning race wasn’t the ‘but-for’
statute ‘‘requires proof that the harm would not cause of the failure to hire)’’). an authorized absence from work; if an
have occurred in the absence of—that is, but for— 10 This conclusion reflects a fair and natural employee is not expected or required to
the defendant’s conduct’’) (internal citations and reading of the FFCRA, and there is no textual basis work, he or she is not taking leave. This
quotation marks omitted); Univ. of Tex. SW. Ctr. v. here to deviate from such a reading. This is so even interpretation is consistent with the
Nassar, 570 U.S. 338, 346–47 (2013); Gross v. FBL through the FFCRA may be classified as a remedial
Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (‘‘[T]he statute under which Congress sought to protect
Department’s long-standing
ordinary meaning of the [Age Discrimination in workers. See, e.g., Encino Motorcars, LLC v. interpretation of the term ‘‘leave’’ in the
Employment Act’s] requirement that an employer Navarro, 138 S. Ct. 1134, 1142 (2018) (statute’s FMLA (which the EFMLEA amended).
took adverse action ‘because of’ age is that . . . age remedial purpose did not justify departing from ‘‘a See 29 U.S.C. 2612(a). For instance, the
was the ‘but-for’ cause of the employer’s adverse fair reading’’ of the plain text). This is particularly
Department’s FMLA regulation at
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decision.’’); Safeco Ins. Co. of Am. v. Burr, 551 U.S. true in light of the fact that FFCRA leave is but one
47, 63 (2007) (‘‘[T]he phrase ‘based on’ indicates a part of a wider universe of COVID–19-related
but-for causal relationship. . . .’’). 11 See Brandt, 957 F.3d at 76.
government-provided relief. Moreover, the text of
8 In re Fisher, 649 F.3d 401, 403 (5th Cir. 2011); the FFCRA demonstrates that Congress was attuned 12 The Department notes that as of the date of this
see also, e.g., Burrage, 571 U.S. at 219 (heroin use to not only employees’ need for leave but also to publication, the Secretary of Health and Human
was not proven to be a cause of death where ‘‘the employers’ circumstances. See, e.g., FFCRA Servces had not specified a substantially similar
Government concedes that there is no ‘evidence 3102(b); 3105, 5102(a). condition in accordance with this subsection.
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57680 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
§ 825.200(h) states that ‘‘if for some furlough period because there is no paid she may be eligible for unemployment
reason the employer’s business activity work to perform. But if an employee insurance and other assistance
has temporarily ceased and employees with a qualifying reason could take programs.
generally are not expected to report for FFCRA leave even when there is no New York State has argued that the
work,’’ the time that ‘‘the employer’s work, he or she could take FFCRA leave, work-availability requirement would
activities have ceased do not count potentially for many weeks, even when ‘‘insert[] a capacious and unpredictable
against the employee’s FMLA leave the employer closes its business and loophole basing eligibility on the hour-
entitlement.’’ Time that an employee is furloughs its workers. The employee on by-hour or day-by-day happenstance
not required to work does not count FFCRA leave would continue to be paid that work may not be available.’’ Pl’s
against an employee’s 12 workweek during this period, while his or her co- Mem. Of L., New York v. U.S. Dep’t of
leave entitlement under the FMLA— workers who do not have a qualifying Labor, 2020 WL 3411251 (S.D.N.Y. filed
including any EFMLEA leave—because reason for taking FFCRA leave would May 5, 2020). But as discussed above,
it is not ‘‘leave.’’ 13 In addition, the not. The Department does not believe the requirement is not a loophole but
Department’s regulations implementing Congress intended such an illogical rather a longstanding principle in the
Executive Order 13706, which require result. Department’s employee-leave
certain federal contractors to provide To be clear, the Department’s regulations. It does not operate as an
employees with paid sick leave under interpretation does not permit an hour-by-hour assessment as to whether
certain circumstances, reflect this same employer to avoid granting FFCRA leave the employee would have a task to
understanding. The regulations perform but rather questions whether
by purporting to lack work for an
explicitly define ‘‘paid sick leave’’ to the employee would have reported to
employee. The work-availability
mean ‘‘compensated absence from work at all. Moreover, the availability or
requirement for FFCRA leave should be
employment,’’ 29 CFR 13.2 (emphasis unavailability of work must be based on
understood in the context of the
added), and explain that ‘‘a contractor legitimate, non-discriminatory and non-
applicable anti-retaliation provisions,
must permit an employee to use paid retaliatory business reasons.14
which prohibit employers from Furthermore, FFCRA leave is only one
sick leave to be absent from work for discharging, disciplining, or
that contractor during time the form of relief that has been made
discriminating against employees for available during the COVID–19 crisis.
employee would have been performing
taking such leave. See 29 U.S.C. 2615; Among other things, FFCRA paid leave
work on or in connection with a covered
FFCRA section 5104, as amended by ensures workers are not forced to choose
contract or, [under other specified
CARES Act section 3611(8); 29 CFR between their paychecks and the public
circumstances], during any work time
826.150(a), 826.151(a). Accordingly, health measures needed to combat the
because of [the enumerated qualifying
employers may not make work virus; for example, an employee who
reasons for leave],’’ 29 CFR 13.5(c)(1)
unavailable in an effort to deny FFCRA may have been exposed to COVID–19 is
(emphasis added).
The Department notes that removing leave because altering an employee’s encouraged not to go to work and
the work-availability requirement would schedule in an adverse manner because thereby risk spreading the virus. Other
not serve one of the FFCRA’s purposes: that employee requests or takes FFCRA provisions of the CARES Act assist
Discouraging employees who may be leave may be impermissible retaliation. workers in other circumstances. To
infected with COVID–19 from going to See Burlington N. & Santa Fe Ry. Co. v. encourage employers to maintain
work. If there is no work to perform, White, 548 U.S. 53, 69 (2006) (‘‘A employees on the payroll, the Paycheck
there would be no need to discourage schedule change in an employee’s work Protection Program, CARES Act sections
potentially infected employees from schedule may make little difference to 1101–1114, made available low-interest,
coming to work through the provision of many workers, but may matter and potentially forgivable, loans to
paid FFCRA leave. Nor is there a need enormously to a young mother with employers who use those funds to
to protect a potentially infected school-age children.’’); see also Welch v. continue to pay employees who might
employee who stays home from an Columbia Mem’l Physician Hosp. Org., otherwise be laid off. To furnish relief
employer’s disciplinary actions if the Inc., No. 1:13–CV–1079 GLS/CFH, 2015 to employees whose employers are not
employer has no work for the employee WL 6855810, at *7 (N.D.N.Y. Nov. 6, able to maintain them on the payroll,
to perform. 2015) (employee’s ‘‘return[ ] from FMLA the Relief for Workers Affected by
Removing the work-availability leave days before her supervisors Coronavirus Act, CARES Act sections
requirement would also lead to perverse changed her schedule . . . . suffic[ed] 2101–2116, expanded the Federal
results. Typically, if an employer closes to support an inference of retaliation.’’). Government’s support of unemployment
its business and furloughs its workers, There must be a legitimate, non- insurance by enlarging the scope of
none of those employees would receive retaliatory reason why the employer unemployment coverage, the length of
paychecks during the closure or does not have work for an employee to time for which individuals were eligible
perform. This may occur, for example, for unemployment payments, and the
13 Under the FMLA, a period during which an where the employer has temporarily or amount of those payments. And most
employer has no work for an employee is not permanently ceased operations at the directly, the CARES Act created a
counted against the employee’s entitlement to worksite where the employee works or refundable tax credit, advances of which
leave. Because FFCRA leave is paid, an added result
in the same scenario is that the employee would not
where a downturn in business forces the are being paid in 2020, to address the
receive pay for that period because that period employer to furlough the employee for financial stress of the pandemic. The
would not count as leave. The introduction of pay, legitimate business reasons. See, e.g., credit is worth up to $1,200 per eligible
however, does not change the meaning of ‘‘leave.’’ Mullendore v. City of Belding, 872 F.3d individual or up to $2,400 for
Paid leave under the FFCRA provides employees
income for time during which they otherwise
322, 329 (6th Cir. 2017) (no FMLA individuals filing a joint return, plus up
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would have worked and therefore would have retaliation where employer ‘‘has to $500 per qualifying child. CARES Act
otherwise been paid. If an employer has no work demonstrated a legitimate [and non-
for an employee, the employee would not have pretextual] reason for terminating’’ the 14 Regardless, any economic incentive for private-
reported to work (or telework) or been paid, and sector employers to wrongfully deny their
therefore any payments for FFCRA leave would not,
employee). Although an out-of-work employees FFCRA leave is limited by the fact that,
as intended, substitute for wages that he or she employee would not be eligible for for these employers, FFCRA leave is fully funded
would otherwise have received. FFCRA leave in these scenarios, he or by the Federal Government through tax credits.
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57681
section 2201. All of this was in addition intermittent leave for these new intermittent leave. Rather, § 826.50
to industry-specific support measures qualifying FMLA leave reasons. 29 permits an employee who is reporting to
and myriad changes to the Internal U.S.C. 2612(b)(1). a worksite to take FFCRA leave on an
Revenue Code. See, e.g., CARES Act In contrast to the FMLA, in the intermittent basis only when taking
sections 2202–2308; 4001–4120. Against FFCRA, Congress said nothing about leave to care for his or her child whose
this backdrop, the Department interprets intermittent leave,16 but granted the school, place of care, or child care
the FFCRA’s paid sick leave and Department broad regulatory authority provider is closed or unavailable due to
emergency family and medical leave to effectuate the purposes of the EPLSA COVID–19, and only with the
provisions to grant relief to employers and EFMLEA (which amends the employer’s consent. 29 CFR 826.50(b).
and employees where employees cannot FMLA) and to ensure consistency Because this is the only qualifying
work because of the enumerated reasons between the two laws.17 As the District reason for EFMLEA leave, such leave
for leave, but not where employees Court acknowledged, because ‘‘Congress may always be taken intermittently
cannot work for other reasons, in did not address intermittent leave at all provided that the employer consents. As
particular the unavailability of work in the FFCRA[,] it is therefore precisely to EPSLA leave, this constitutes only
from the employer. the sort of statutory gap . . . that DOL’s one of the six potential qualifying
III. Reaffirming and Explaining the broad regulatory authority empowers it reasons. The Department reasoned that
Employer-Approval Requirement for to fill.’’ New York, 2020 WL 4462260, at the other reasons for taking EPSLA leave
Intermittent Leave Under § 826.50 in *11. correlate to a higher risk of spreading
Accordance With FMLA Principles The Department did not interpret the the virus and therefore that permitting
absence of language authorizing intermittent leave would hinder rather
The Department reaffirms the April 1 intermittent leave under the FFCRA to than further the FFCRA’s purposes.
temporary rule’s position that employer categorically permit 18 or prohibit 19
approval is needed to take intermittent An employee who is teleworking (and
FFCRA leave, and explains the basis for not reporting to the worksite) may take
16 Congress did, however, include temporal
this requirement, which is consistent language as to leave, which is consistent with a
intermittent leave for any of the
with longstanding FMLA principles recognition that an employee with a qualifying FFCRA’s qualifying reasons as long as
governing intermittent leave. reason for leave might not need to take his or her the employer consents. 29 CFR
full FFCRA leave entitlement of two weeks (up to 826.50(c). The District Court upheld the
Intermittent leave is leave taken in 80 hours) of EPSLA leave and twelve weeks of
separate blocks of time due to a single EFMLEA leave, ten of which are paid. See FFCRA
rule’s prohibition on intermittent leave
qualifying reason, with the employee section 3102(b) (‘‘An employer shall provide paid for employees who are reporting to the
reporting to work intermittently during leave for each day of [EFMLEA] leave that an worksite when the reason for leave
employee takes’’); id. § 5110(f)(A)(i) (defining ‘‘paid correlates to a higher risk of spreading
an otherwise continuous period of leave sick time’’ as ‘‘an increment of compensated leave
taken for a single qualifying reason.15 that . . . is provided by an employer for use during
the virus, i.e., all qualifying reasons
Under the FMLA, intermittent leave is an absence from employment’’ for an EPSLA except for caring for the employee’s
specifically defined as ‘‘leave taken in qualifying reason); id. § 7001(b) (referencing days child due to school or childcare closure
and calendar quarters for tax credit purposes). or unavailability. New York, 2020 WL
separate periods of time due to a single These provisions do not mention ‘‘intermittent
illness or injury, rather than for one leave,’’ a term Congress has previously invoked and
4462260, at *11–12 & n.9; 29 CFR
continuous period of time, and may therefore could have used but did not. 826.50(b)(2). However, the District Court
include leave of periods from an hour or 17 FFCRA section 5111(3) (delegating to the held that the Department did not
more to several weeks.’’ 29 CFR Secretary of Labor authority to promulgate adequately explain the rationale for the
regulations ‘‘as necessary, to carry out the purposes requirement that intermittent leave,
825.102. In the original FMLA statute, of this Act, including to ensure consistency’’
Congress expressly authorized between the EPSLA and the EFMLEA) (emphasis where available, can only be taken with
employees taking FMLA leave for any added); id. section 3102(b), amended by CARES Act the employer’s consent. New York, 2020
qualifying reason to do so intermittently section 3611(7) (same). WL 4462260, at *12. After
18 Permitting employees to take intermittent leave
but only under certain circumstances. reconsideration, the Department affirms
without restriction would create tension with how
Depending on the reason for taking both Congress and the Department have understood
its earlier interpretation—with
FMLA leave, the statute requires a intermittent leave in most of the circumstances for additional explanation.20
medical need to take intermittent leave which it is permitted under the FMLA. Further, As the April 1 rule explained, the
or an agreement between the employer while the Department recognizes that the FFCRA is
intended in part to allow eligible employees to take
Department ‘‘imported and applied to
and employee before an employee may paid leave for certain COVID–19-related reasons, the FFCRA certain concepts of
take intermittent leave. See Public Law unrestricted intermittent leave would undermine a intermittent leave from its FMLA
103–3, sec. 102(b)(1), codified at 29 statutory purpose of combating the COVID–19 regulations.’’ 85 FR 19336.21 Under
U.S.C. 2612(b)(1). In 2008, Congress public health emergency. For example, giving
employees who take paid sick leave because an
amended the FMLA to create two new individual in their care could be infected with would exacerbate COVID–19 contagion.
reasons for FMLA leave: Qualifying COVID–19, see FFCRA section 5102(a)(4), Nevertheless, the Department does not believe this
exigencies due to service in the Armed unrestricted flexibility to go to work on days of is the best interpretation because it would
Forces and to care for injured service their choosing could increase the risk of COVID–19 unnecessarily limit employer and employee
contagion. See New York, 2020 WL4462260, at *12. flexibilities in accommodating work and leave
members. 29 U.S.C. 2612(a)(1)(E), (a)(3). Accordingly, the Department did not interpret the needs in situations that do not as directly implicate
Like the FMLA in 1993, the 2008 FFCRA to permit unrestricted intermittent leave. public health concerns.
amendments explicitly authorized 19 An alternative construction that prohibits 20 The Department gives the additional
employees from intermittently taking paid sick explanation here as a supplement to—and not a
15 Intermittent leave occurs only when the leave and expanded family and medical leave in replacement of—the discussion of intermittent
employee has periods of leave interrupted with any circumstance is arguably more consistent with leave included in the April 1 temporary rule.
Congress’ and the Department’s practice of 21 In so doing, the Department aligned the
periods of reporting to work (or telework). In
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contrast, an employee who works a schedule that explicitly identifying circumstances in which availability, conditions, and limits of intermittent
itself could be characterized as ‘‘intermittent’’ or FMLA leave may be taken intermittently. It also leave under EPSLA and EFMLEA to the greatest
sporadic in which he or she has, for example, would be more consistent with the FFCRA’s public extent possible consistent with 29 U.S.C. 2612(b)
several days off in between each shift, is not taking health objectives because employees who take and 29 CFR 825.202, while at the same time
intermittent leave where the periods between the FFCRA leave for some, but not all, qualified reasons applying and balancing Congress’ broader
shifts for which leave is used are periods during may have been infected or exposed to COVID–19, objectives to contain COVID–19 through furnishing
which the employee is not scheduled to work. and allowing them to return to work intermittently paid leave to employees.
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57682 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
those regulations, ‘‘FMLA leave may be at particular risk if he or she is infected sick leave for these reasons, however,
taken intermittently . . . under certain by the coronavirus or poses a risk of may telework on an intermittent basis
circumstances’’ specified in the statute infecting others. In both cases, the without posing the risk of spreading the
and applied in the regulation. 29 CFR government authority and health care contagion at the worksite or being
825.202.22 In other words, as Congress provider may be concerned that an infected themselves.
has previously specified, and as the individual to whom the order or advice The Department believes the
Department’s regulations require, FMLA is directed has an elevated risk of employer-approval condition for
leave must be taken in a single block of having COVID–19.23 If so, an employee intermittent leave under its FMLA
time unless specific conditions are met. who takes leave under § 826.20(a)(iv) to regulation is appropriate in the context
These conditions are: (1) A medical care for such an individual may have of FFCRA intermittent leave for
need for intermittent leave taken due to elevated risk of COVID–19 exposure. qualifying reasons that do not
the employee’s or a family member’s Finally, an employee who is exacerbate risk of COVID–19 contagion.
serious health condition, which the experiencing COVID–19 symptoms It is a longstanding principle of FMLA
employer may require to be certified by under § 826.20(a)(iii), or other similar intermittent leave that such leave
a health care provider; (2) employer symptoms identified by the Secretary of should, where foreseeable, avoid
approval for intermittent leave taken to HHS under § 826.20(a)(iii), would also ‘‘unduly disrupting the employer’s
care for a healthy newborn or adopted have elevated risk of having COVID–19. operations.’’ 29 CFR 825.302(f). It best
child; or (3) a qualifying exigency At bottom, the qualifying reasons to meets the needs of businesses that this
related to service in the Armed Forces. take paid sick leave under general principle is carried through to
Id. § 826.20(a)(i)–(iv) are medically related the COVID–19 context, by requiring
The regulations concerning because they include situations where employer approval for such leave. In the
intermittent leave due to service in the the employee may have an elevated risk context of intermittent leave being
Armed Forces are not relevant in the of being infected with COVID–19, or is required for medical reasons, the FMLA
very different FFCRA context. See 29 caring for someone who may have an long has recognized certified medical
CFR 825.202(d). The Department further elevated risk of being infected with needs for intermittent leave as
believes certified medical need is not an COVID–19. Rather than justifying paramount, unless the leave is for
appropriate condition for FFCRA intermittent leave, these medical planned medical treatment, in which
intermittent leave. As the District Court considerations militate against case the employee must make
explained, an employer may not require intermittent FFCRA leave where the reasonable efforts to schedule the leave
documentation of any sort as a employee may have an elevated risk of in a manner that does not unduly
precondition to taking FFCRA leave, being infected with COVID–19 or is disrupt operations. 29 U.S.C.
New York, 2020 WL 4462260, at *12, so caring for someone who may have such 2612(e)(2)(A); 29 CFR 825.302(e).
the Department does not believe elevated risk. Permitting such an However, when intermittent leave is not
certification could be required as a employee to return to work required for medical reasons, the FMLA
precondition for such leave taken intermittently when he or she is at an balances the employee’s need for leave
intermittently. Moreover, certified elevated risk of transmitting the virus with the employer’s interest in avoiding
medical need is inapplicable where an would be incompatible with Congress’ disruptions by requiring agreement by
employee takes expanded family and goal to slow the spread of COVID–19. the employer for the employee to take
medical leave or paid sick leave under See 85 FR 19336; New York, 2020 WL intermittent leave. 29 CFR 825.120(b);
§ 826.20(a)(v) due to the closure or 4462260, at *12. The same is broadly .121(b). The Department’s FFCRA
unavailability of his or her child’s true where an individual is at higher regulations already provide that
school, place of care, or child care risk if infected: Permitting an individual employees may telework only where the
provider because those qualifying who has been ordered or advised to self- employer permits or allows. See
reasons bear no relationship to any isolate due to his or her vulnerability to § 826.10(a). Since employer permission
medical need. COVID–19 to return to work is a precondition under the FFCRA for
The remaining qualifying reasons to intermittently would also undermine telework, the Department believes it is
take paid sick leave under the FFCRA’s public health objectives. also an appropriate condition for
§ 826.20(a)(i)–(iv) and (vi) are medically Accordingly, the regulations do not teleworking intermittently due to a need
related but do not lend themselves to allow employees who take paid sick to take FFCRA leave.25 On the other
the allowance of intermittent leave for leave under § 826.20(a)(i)–(iv) and (vi) hand, the Department does not believe
medical reasons. A COVID–19-related to return to work intermittently at a that an employee should be required to
quarantine or isolation order under worksite.24 Employees who take paid obtain certification of medical need in
§ 826.20(a)(i) prevents certain order to telework intermittently because
employees from going to work because 23 This is not the only reasons why a government it may be unduly burdensome in this
the issuing government authority has entity or a health care provider may order or advise context for an employee to obtain such
an individual to quarantine. For instance, the
determined that allowing such government entity or health care provider may be
certification. Medical certification
employees to work would exacerbate concerned that the individual has elevated would also be redundant because the
COVID–19 contagion. Similarly, a vulnerability to COVID–19 because that individual employee must already obtain employer
health care provider may advise an falls within a certain age range or has a certain permission to telework in the first place.
medical condition.
employee to self-quarantine under 24 Employees are not required to use up their
The Department has thus aligned the
§ 826.20(a)(ii) because that employee is entire FFCRA leave entitlement the first time they employer-agreement requirements to
face a qualifying reason for taking FFCRA leave.
22 In 1995, the Department promulgated Depending on their circumstances, employees may 25 For example, consider an employee who takes
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regulations implementing the intermittent leave not need to take their full FFCRA leave entitlement paid sick leave after being advised to self-isolate by
provisions as part of its final rule implementing the when taking leave for one of these qualifying a health care provider. If the employer does not
FMLA, which had been enacted in 1993. See 60 FR reasons. If so, they will be eligible to take the permit telework, the employee would be unable to
2180. The current version of the regulation includes remainder of their FFCRA leave entitlement should work intermittently at the worksite during the
organizational and other minor amendments made they later face a separate qualifying reason for such period of paid sick leave. Intermittent leave would
in 2008, 2013, and 2015. See 29 CFR 825.202; see leave. Taking leave at a later date for a distinct be possible only if the employer allows the
also 80 FR 10001; 78 FR 8902; 73 FR 67934. qualifying reason is not intermittent leave. employee to telework.
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57683
apply to both telework and intermittent from the scenario where the school is broad. See New York, 2020 WL
leave from telework. The Department closed for some period, and the 4462260, at *9–10.
believes that its approach affords both employee wishes to take leave only for The District Court explained that
employers and employees flexibility. In certain portions of that period for because the FFCRA adopted the FMLA’s
many circumstances, these agreed-upon reasons other than the school’s in- statutory definition of ‘‘health care
telework and scheduling arrangements person instruction schedule. Under provider’’ in 29 U.S.C. 2611(6),
may reduce or even eliminate an these circumstances, the employee’s including the portion of that definition
employee’s need for FFCRA leave by FFCRA leave is intermittent and would permitting the Secretary to determine
reorganizing work time to accommodate require his or her employer’s agreement. that additional persons are ‘‘capable of
the employee’s needs related to COVID– With those explanations and providing health care services,’’ any
19. exceptions in mind, the Department definition adopted by the Department
Employer approval is also an reaffirms that employer approval is must require ‘‘at least a minimally role-
appropriate condition for taking FFCRA needed to take FFCRA leave specific determination’’ of which
leave intermittently to care for a child, intermittently in all situations in which persons are ‘‘capable of providing
whether the employee is reporting to the intermittent FFCRA leave is permitted. healthcare services.’’ New York, 2020
worksite or teleworking. This condition WL 4462260, at *10. In other words, the
already applies where an employee IV. Revisions to Definition of ‘‘Health definition cannot ‘‘hinge[ ] entirely on
takes FMLA leave to care for his or her Care Provider’’ Under § 826.30(c)(1) to the identity of the employer,’’ but must
healthy newborn or adopted child, Focus on the Employee depend on the ‘‘skills, role, duties, or
which is similar to where an employee capabilities’’ of the employee. Id. To
Sections 3105 and 5102(a) of the
takes FFCRA leave to care for his or her define the term otherwise would sweep
FFCRA, respectively, allow employers
child because the child’s school, place in certain employees of health care
to exclude employees who are ‘‘health
of care, or child care provider is closed facilities ‘‘whose roles bear no nexus
care provider[s]’’ or who are
or unavailable. whatsoever to the provision of
The employer-approval condition ‘‘emergency responder[s]’’ from
healthcare services.’’ Id. The District
would not apply to employees who take eligibility for expanded family and
Court did not foreclose, however, an
FFCRA leave in full-day increments to medical leave and paid sick leave. The
amended regulatory definition that is
care for their children whose schools are Department understands that the option
broader than the FMLA’s regulatory
operating on an alternate day (or other to exclude health care providers and definition, explaining that there is
hybrid-attendance) basis because such emergency responders serves to prevent precedent for the proposition that an
leave would not be intermittent under disruptions to the health care system’s agency may define a term shared by two
§ 826.50. In an alternate day or other capacity to respond to the COVID–19 sections of a statute differently ‘‘as long
hybrid-attendance schedule public health emergency and other as the different definitions individually
implemented due to COVID–19, the critical public health and safety needs are reasoned and do not exceed the
school is physically closed with respect that may result from health care agency’s authority.’’ Id. at *10 n.8.
to certain students on particular days as providers and emergency responders After careful consideration of the
determined and directed by the school, being absent from work. The FFCRA District Court’s order, this rule adopts a
not the employee. The employee might adopts the FMLA definition of ‘‘health revised definition of ‘‘health care
be required to take FFCRA leave on care provider,’’ FFCRA section 5110(4), provider,’’ to appear at § 826.30(c)(1),
Monday, Wednesday, and Friday of one which covers (i) licensed doctors of for purposes of the employer’s optional
week and Tuesday and Thursday of the medicine or osteopathy and (ii) ‘‘any exclusion of employees who are health
next, provided that leave is needed to other person determined by the care providers from FFCRA leave. First,
actually care for the child during that Secretary to be capable of providing revised § 826.30(c)(1)(i) defines a
time and no other suitable person is health care services,’’ 29 U.S.C. 2611(6). ‘‘health care provider’’ to include
available to do so. For the purposes of The FFCRA, however, uses the term employees who fall within the
the FFCRA, each day of school closure ‘‘health care provider’’ in two markedly definition of health care provider under
constitutes a separate reason for FFCRA different contexts. Section 5102(a)(2) of 29 CFR 825.102 and 825.125.
leave that ends when the school opens the FFCRA uses ‘‘health care provider’’ Specifically, revised § 826.30(c)(1)(i)(A)
the next day. The employee may take to refer to medical professionals who cites 29 CFR 825.102 and 825.125—to
leave due to a school closure until that may advise an individual to self-isolate bring physicians and others who make
qualifying reason ends (i.e., the school due concerns related to COVID–19 such medical diagnoses within this term.
opened the next day), and then take that the individual may take paid sick Second, revised § 826.30(c)(1)(i)(B),
leave again when a new qualifying leave to follow that advice. In the consistent with the District Court’s
reason arises (i.e., school closes again Department’s April 1 temporary rule order, identifies additional employees
the day after that). Under the FFCRA, implementing the FFCRA’s paid leave who are health care providers by
intermittent leave is not needed because provisions, the Department used the focusing on the role and duties of those
the school literally closes (as that term definition of this term it adopted under employees rather than their employers.
is used in the FFCRA and 29 CFR the FMLA, 29 CFR 825.125, to define It expressly states that an employee is a
826.20) and opens repeatedly. The same this group of health care providers. health care provider if he or she is
reasoning applies to longer and shorter § 826.20(a)(3). In the second context, ‘‘capable of providing health care
alternating schedules, such as where the Sections 3105 and 5102(a) of the FFCRA services.’’ The definition then further
employee’s child attends in-person allow employers to exclude employees limits the universe of relevant ‘‘health
classes for half of each school day or who are ‘‘health care providers’’ or who care services’’ that the employee must
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where the employee’s child attends in- are ‘‘emergency responders’’ from the be capable of providing to qualify as a
person classes every other week and the FFCRA’s entitlement to paid leave. The ‘‘health care provider’’—i.e., the duties
employee takes FFCRA leave to care for Department promulgated a different or role of the employee. Specifically, a
the child during the half-days or weeks definition of ‘‘health care provider’’ to health care provider must be ‘‘employed
in which the child does not attend identify these employees, § 826.30(c)(1), to provide diagnostic services,
classes in person. This is distinguished which the District Court held was overly preventive services, treatment services,
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57684 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
or other services that are integrated with The provision of the Pandemic Act cited diagnostic, preventive, or treatment
and necessary to the provision of patient above limits the liability of ‘‘health care services and, if not provided, would
care.’’ professionals,’’ defined to be limited to adversely impact patient care. It is not
Neither the FMLA nor FFCRA defines individuals ‘‘licensed, registered, or enough that an employee works for an
‘‘health care services,’’ leaving a certified under Federal or State laws or entity that provides health care services.
statutory gap for the Department to fill. regulations to provide health care Moreover, the Department has designed
When used in the context of services,’’ who provide services as the fourth category to encompass only
determining who may take leave despite members of the Medical Reserve Corps those ‘‘services that are integrated with
a need to respond to a pandemic or to or in the Emergency System for and necessary to the provision of patient
ensure continuity of critical operations Advance Registration of Volunteer care’’ and that, ‘‘if not provided, would
within our health care system, the term Health Professionals. 42 U.S.C. adversely impact patient care.’’ Health
‘‘health care services’’ is best 234(d)(1). The FFCRA’s optional care services that do not fall into any of
understood to encompass a broader exclusion from its leave entitlements these categories are outside the
range of services than, as in the FMLA has a different purpose: Ensuring that Department’s definition. Finally, the
context, primarily those medical the health care system retains the Department adds descriptions to
professionals who are licensed to capacity to respond to COVID–19 and emphasize that the definition of ‘‘health
diagnose serious health conditions. To other critical health care needs. See 85 care provider’’ is far from open-ended
interpret this critical term, the FR 19335. Congress’ optional exclusion by identifying specific types of
Department is informed by how other of emergency responders in addition to employees who are and are not included
parts of Federal law define this term. In health care providers demonstrates that within the definition and by describing
one notable example, the Pandemic and Congress was intending to provide a the types of roles and duties that would
All-Hazards Preparedness and safety valve to ensure that critical health make an employee a ‘‘health care
Advancing Innovation Act of 2019 and safety services would not be provider.’’
(Pandemic Act) defines ‘‘health care understaffed during the pandemic. Revised § 826.30(c)(1)(ii) lists the
service’’ in the context of a pandemic Given this context, the Department three types of employees who may
response to mean ‘‘any services concluded Congress did not intend to qualify as ‘‘health care providers’’ under
provided by a health care professional, limit the optional health care provider § 826.30(c)(1)(i)(B). First,
or by any individual working under the exclusion to only physicians and others § 826.30(c)(1)(ii)(A) explains that
supervision of a health care who make medical diagnoses, i.e. the included within the definition are
professional, that relate to (A) the persons that qualify as a health care nurses, nurse assistants, medical
diagnosis, prevention, or treatment of provider in the different contexts posed technicians, and any other persons who
any human disease or impairment; or by the FMLA and EPSLA. The directly provide the services described
(B) the assessment or care of the health Department thus interprets ‘‘health care in § 826.30(c)(1)(i)(B), i.e., diagnostic,
of human beings.’’ 42 U.S.C. 234(d)(2). services’’ for the purpose of this preventive, treatment services, or other
The services listed in subparagraphs (A) definition to encompass relevant services that are integrated with and
and (B) of this definition reflect services even if not performed by necessary to the provision of patient
Congress’s view of health care services individuals with a license, registration, care are health care providers.
that are provided during a pandemic. In Second, § 826.30(c)(1)(ii)(B) explains
or certification. For the same reason, the
the Department’s view, the Pandemic that, included within the definition, are
Department has determined that an
Act’s description of the categories of employees providing services described
employee is ‘‘capable’’ of providing
services that qualify as ‘‘health care in paragraph (c)(1)(i)(B) under the
health care services if he or she is supervision, order, or direction of, or
services’’ provides a useful baseline for
employed to provide those services. providing direct assistance to, a person
interpretation of ‘‘health care services’’
That is, the fact that the employee is described in paragraphs (c)(1)(i)(A) (that
as that term is used in connection with
paid to perform the services in question is, employees who are health care
the FFCRA because both statutes focus
is, in this context, conclusive of the providers under the usual FMLA
on pandemic response. Accordingly, for
employee’s capability. While a license, definition) or (c)(1)(ii)(A) (that is, nurses
purposes of who may be excluded by
registration, or certification may be a or nurse assistants and other persons
their employers from taking FFCRA
prerequisite for the provision of some who directly provide services described
leave, the revised regulation provides
that an employee is ‘‘capable of health care services, the Department’s in paragraph (c)(1)(i)(B)).
providing health care services,’’ and interpretation of ‘‘health care services’’ Finally, under § 826.30(c)(1)(ii)(C),
thus may be a ‘‘health care provider’’ encompasses some services for which ‘‘health care providers’’ include
under 29 U.S.C. 2611(6)(B), if he or she license, registration, or certification is employees who may not directly
is employed to provide diagnostic not required at all or not universally interact with patients and/or who might
services, preventative services, or required. not report to another health care
treatment services. The Department also In any event, Congress defined health provider or directly assist another
includes a fourth category, services that care services, listed in 42 U.S.C. health care provider, but nonetheless
are integrated with and necessary to the 234(d)(2)(A) and (B), in the context of provide services that are integrated with
provision of patient care and that, if not combatting a pandemic. The and necessary components to the
provided, would adversely impact Department also recognizes that the provision of patient care. Health care
patient care, which is analogous to but definition must have limits, as the services reasonably may include
narrower than the Pandemic Act’s District Court held. The Department’s services that are not provided
reference to services ‘‘related to . . . the revised ‘‘health care provider’’ immediately, physically to a patient; the
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assessment or care of the health of definition is thus clear that employees term health care services may
human beings.’’ See U.S.C. 234(d)(2)(B). it covers must themselves must be reasonably be understood to be broader
These categories are codified in the capable of providing, and employed to than the term health care. For example,
revised § 826.30(c)(1)(i)(B). provide diagnostic, preventative, or a laboratory technician who processes
The Pandemic Act and the FFCRA treatment services or services that are test results would be providing
diverge in an important way, however. integrated with and necessary to diagnostic health care services because,
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57685
although the technician does not work This list contains almost the same set of services are integrated and necessary
directly with the patient, his or her health care facilities listed in the because they are an essential component
services are nonetheless an integrated original § 826.30(c)(1)(i) and is drawn of health care. For example, a nurse
and necessary part of diagnosing the from 42 U.S.C. 300jj(3), which also providing counseling on diabetes
patient and thereby determining the contains a non-exhaustive list of entities prevention or on managing stress would
proper course of treatment.26 Processing that qualify as ‘‘health care be providing preventative services and
that test is integrated into the diagnostic providers.’’ 28 Consistent with the therefore would be a health care
process, like performing an x-ray is District Court’s decision, however, the provider.
integrated into diagnosing a broken revised regulatory text explicitly Treatment services are the third
bone. provides that not all employees who category of services which make up
Individuals who provide services that work at such facilities are necessarily health care services. Treatment services
affect, but are not integrated into, the health care providers within the include, for example, performing
provision of patient care are not covered definition. For example, the categories surgery or other invasive or physical
by the definition, because employees of employees listed in § 826.30(c)(1)(iii) interventions, administering or
who do not provide health care services would not qualify as ‘‘health care providing prescribed medication, and
as defined in paragraph (c)(1)(i)(B) are providers’’ even if they worked at a providing or assisting in breathing
not health care providers. Accordingly, listed health care facility. On the other treatments.
revised § 826.30(c)(1)(iii) provides hand, employees who do not work at The last category of health care
examples of employees who are not any of the listed health care facilities services are those services that are
health care providers. The Department may be health care providers under integrated with and necessary to
identifies information technology (IT) FFCRA sections 3105 and 5102(a). Thus, diagnostic, preventive, or treatment
professionals, building maintenance the list is merely meant to be a helpful services and, if not provided, would
staff, human resources personnel, cooks, guidepost, but itself says nothing adversely impact patient care. This final
food service workers, records managers, dispositive as to whether an employee category is intended to cover other
consultants, and billers. While the is a health care provider. integrated and necessary services that, if
services provided by these employees Under this revised definition, not provided, would adversely affect the
may be related to patient care—e.g., an § 826.30(c)(1)(v) provides specific patient’s care. Such services include, for
IT professional may enable a hospital to examples of services that may be example, bathing, dressing, hand
maintain accurate patient records—they considered ‘‘diagnostic services, feeding, taking vital signs, setting up
are too attenuated to be integrated and preventative services, treatment medical equipment for procedures, and
necessary components of patient care. services, or other services that are transporting patients and samples.
This list is illustrative, not exhaustive. integrated with and necessary to the These tasks must be integrated and
Recognizing that a health care provision of patient care’’ under necessary to the provision of patient
provider may provide services at a § 826.30(c)(1)(i). These examples are care, which significantly limits this
variety of locations, and to help the non-exhaustive and are meant to be category.
regulated community identify the sorts illustrative. For example, bathing, dressing, or
of employees that may perform these Diagnostic services include, for hand feeding a patient who cannot do
services, § 826.30(c)(2)(iv) provides a example, taking or processing samples, that herself is integrated into to the
non-exhaustive list of facilities where performing or assisting in the patient’s care. In another example, an
health care providers may work, performance of x-rays or other individual whose role is to transport
including temporary health care diagnostic tests or procedures, and tissue or blood samples from a patient
facilities that may be established in interpreting test or procedure results. to the laboratory for analysis for the
response to the COVID–19 pandemic.27 These services are integrated and purpose of facilitating a diagnosis
necessary because without their would be providing health care services
26 The District Court’s opinion noted that ‘‘lab provision, patient diagnosis would be because timely and secure
technicians’’ do not ‘‘directly provide healthcare undermined and individuals would not
services to patients.’’ See New York, 2020 WL
transportation of the samples is
4462260, at *10. However, the precise question
get the needed care. To illustrate, a integrated with and necessary to
whether any lab technician may be a health care technician or nurse who physically provide care to that patient.29 These
provider was not before or decided by the District performs an x-ray is providing a tasks also must be something that, if not
Court. The relevant statutory definition does not diagnostic service and therefore is a
limit the persons the Secretary may determine
performed, would adversely affect the
capable of providing health care services to only health care provider. patient’s care, and they also must be
those who provide health care services directly to Preventative services include, for integrated into that patient’s care. Thus,
patients. As explained in this context, the example, screenings, check-ups, and tasks that may be merely indirectly
Department concludes some persons who provide counseling to prevent illnesses, disease,
health care services will do so indirectly. related to patient care and are not
Importantly, however, the Department’s definition
or other health problems. As with necessary to providing care are not
includes only persons who themselves provide diagnostic services, preventative health care services. Further, the
health care services, whether indirectly or directly. Department notes that some of the
Accordingly, the Department concludes based on 28 ‘‘The term ‘health care provider’ includes a
the explanation provided above that, while not all hospital, skilled nursing facility, nursing facility,
exemplar services listed in
lab technicians will necessarily qualify as health home health entity or other long term care facility, § 826.30(c)(1)(v)(D) may fit into more
care providers, some will. The determination health care clinic, community mental health center than one category.
requires a role-specific analysis. . . ., renal dialysis facility, blood center, Finally, § 826.30(c)(1)(vi) explains
27 The Javits Center in New York City, for ambulatory surgical center . . ., emergency medical
example, was converted into a temporary hospital services provider, Federally qualified health center,
that the above definition of ‘‘health care
to treat COVID–19 patients. See, e.g., Adam Jeffery group practice, a pharmacist, a pharmacy, a
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29 Again, this requirement operates against the
and Hannah Miller, Coronavirus, Gov. Guomo, the laboratory, a physician . . ., a practitioner . . ., a
National Guard and FEMA transform the Javits rural health clinic, . . . an ambulatory surgical backdrop that a health care provider must be
Center into a hospital, CNCN, Mar 28, 2020, center . . ., a therapist, . . .and any other category employed to provide the identified health care
available at https://www.cnbc.com/2020/03/27/ of health care facility, entity, practitioner, or services. Therefore, a person employed to provide
coronavirus-gov-cuomo-the-national-guard-and- clinician determined appropriate by the Secretary general transportation services that does not, for
fema-transform-the-javits-center-into-a- [of Health and Human Services].’’ 42 U.S.C. example, specialize in the transport of human tissue
hospital.html. 300jj(3). or blood samples is not a health care provider.
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57686 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
provider’’ applies only for the purpose of a health care provider’’ (emphasis laboratory technicians who process
of determining whether an employer added)). COVID–19 or other crucial medical
may exclude an employee from In contrast, and as explained above, diagnostic tests, or other employees
eligibility to take FFCRA leave. This the term ‘‘health care provider’’ serves providing the critical services described
definition does not otherwise apply for an entirely different purpose in FFCRA above. But these workers are vital parts
the purposes of the FMLA. Nor does it sections 3105 and 5102(a). The of the health system capacity that the
identify health care providers whose Department believes these sections are Department believes Congress sought to
advice to self-quarantine may constitute best understood to have granted preserve with the exclusions in FFCRA
a qualified reason for paid sick leave employers the option to exclude from sections 3105 and 5102(a). A
under FFCRA section 5102(a)(2). paid leave eligibility health care purposefully narrow definition of
Revised § 826.30(c)(1)’s definition of providers whose absence from work ‘‘health care providers’’ such as that in
‘‘health care provider’’ for purposes of would be particularly disruptive 29 CFR 825.125 would make excludable
FFCRA sections 3105 and 5102(a) because those employees’ services are only a small class of employees that the
remains broader than the definition of important to combating the COVID–19 Department believes would lack a
‘‘health care provider’’ under § 825.125, public health emergency and are connection to the identified policy
which defines the term for the pre- essential to the continuity of operations objective. In accord with that
existing parts of FMLA and for purposes of our health care system in general.31 understanding, revised § 826.30(c)(1)
of FFCRA section 5102(a)(2). This is The definition of ‘‘health care provider’’ adopts a broader, but still
because these two definitions serve as limited only to diagnosing medical circumscribed, definition of ‘‘health
different purposes. The same term is professionals under 29 CFR 825.125 is, care provider’’ than 29 CFR 825.125.
usually presumed to have the same in the Department’s view, incompatible
with this understanding of these V. Revising Notice and Documentation
meaning throughout a single statute. Requirements Under §§ 826.90 and .100
Brown v. Gardner, 513 U.S. 115, 118 sections. For example, nurses provide
crucial services, often directly related to To Improve Consistency
(1994). But ‘‘this presumption . . .
yields readily to indications that the the COVID–19 public health emergency The FFCRA permits employers to
same phrase used in different parts of or to the continued operations of our require employees to follow reasonable
the same statute means different health care system in general, but as notice procedures to continue to receive
things.’’ Barber v. Thomas, 560 U.S. noted, most nurses are not ‘‘health care paid sick leave after the first workday
474, 484 (2010) (collecting cases). The providers’’ under § 825.125.32 Nor are (or portion thereof) of leave. FFCRA
Department purposefully limited section 5110(5)(E). Section 3102(b) of
§ 825.125’s definition of ‘‘health care 31 Although the statute does not explicitly the FFCRA amends the FMLA to require
articulate the purpose of these exceptions, the employees taking expanded family and
provider’’ to licensed medical Department believes it is the only reasonable
professionals because the pre-existing inference given that FFCRA sections 3015 and
medical leave to provide their
FMLA definition used that term in the 5102(a) each allowed employers to exclude both employers with notice of leave as
context of who could certify the ‘‘health care providers’’ and ‘‘emergency practicable, when the necessity for such
responders’’ from FFCRA leave. Moreover, at the leave is foreseeable.
diagnosis of serious health conditions time the FFCRA was passed, many people feared
for purposes of FMLA leave.30 As a that the health system capacity would be strained,
Section 826.100 lists documentation
and these provisions appear to have been calculated that an employee is required to provide
result, the definition in 29 CFR 825.125
to ameliorate that issue. See, e.g., NYC Mayor urges the employer regarding the employee’s
is narrower than the ordinary national enlistment program for doctors, Associated need to take FFCRA leave, and states
understanding of ‘‘health care Press, Apr. 3, 2020, available at https://
that such documentation must be
provider,’’ since many ‘‘providers’’ of www.pbs.org/newshour/health/nyc-mayor-urges-
national-enlistment-program-for-doctors; Jack provided ‘‘prior to’’ taking paid sick
health care services—such as nurses, Brewster, Cuomo: ‘Any Scenario That Is Realistic leave or expanded family and medical
physical therapists, medical Will Overwhelm The Capacity Of The Current leave. The District Court held that the
technicians, or pharmacists—do not Healthcare System,’ Forbes, Mar. 26, 2020, available
at https://www.forbes.com/sites/jackbrewster/2020/ requirement that documentation be
diagnose serious health conditions. See
03/26/cuomo-any-scenario-that-is-realistic-will- given ‘‘prior to’’ taking leave ‘‘is
29 CFR 825.115(a)(1) (defining overwhelm-the-capacity-of-the-current-healthcare- inconsistent with the statute’s
continuing treatment for incapacity to system/#2570066e7cf1; Melanie Evans and unambiguous notice provision,’’ which
require ‘‘[t]reatment two or more times, Stephanie Armour, Hospital Capacity Crosses
allows an employer to require notice of
within 30 days of the first day of Tipping Point in U.S. Coronavirus Hot Spots,
WSJ.com, Mar. 26, 2020, available at https:// an employee’s reason for taking leave
incapacity, by a health care provider, a www.wsj.com/articles/hospital-capacity-crosses- only ‘‘after the first workday (or portion
nurse under direct supervision of a tipping-point-in-u-s-coronavirus-hot-spots-
thereof)’’ for paid sick leave, or ‘‘as is
health care provider, or by a provider of 11585215006; Beckers Hospital Review, COVID–19
response requires ‘all hands on deck’ Atlantic practicable’’ for expanded family and
health care services (e.g., physical Health System CEO says, Mar. 20, 2020, available medical leave taken for school, place of
therapist) under orders of, or on referral at https://www.beckershospitalreview.com/hospital- care, or child care provider closure or
by, a health care provider’’) (emphases management-administration/covid-19-response-
unavailability. New York, 2020 WL
added); id. 825.115(c)(1) (defining requires-all-hands-on-deck-atlantic-health-system-
ceo-says.html. The Department recognizes that this 4462260, at *12.
continuing treatment for a chronic understanding of FFCRA sections 3105 and 5102(a) In keeping with the District Court’s
condition as including ‘‘periodic visits means that fewer people may receive paid leave. conclusion, the Department amends
for treatment by a health care provider However, as explained, the Department believes
this was the balance struck by Congress. § 826.100 to clarify that the
or a nurse under the direct supervision 32 The 1995 FMLA final rule added to § 825.125’s documentation required under
30 Commenters to the 1993 proposed FMLA
definition of health care provider ‘‘nurse § 826.100 need not be given ‘‘prior to’’
practitioners and nurse-midwives (who provide taking paid sick leave or expanded
regulations asked the Department to define ‘‘health diagnosis and treatment of certain conditions,
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care provider’’ to include ‘‘providers of a broad especially at health maintenance organizations and family and medical leave, but rather
range of medical services.’’ 58 FR 31800. The in rural areas where other health care providers may be given as soon as practicable,
Department considered ‘‘such a broad definition may not be available) if performing within the which in most cases will be when the
. . . inappropriate’’ because, at that time, the term scope of their practice as allowed by State law.’’ 60
‘‘health care provider’’ was used in the FMLA to FR 2199. Other nurses, however, are not generally
employee provides notice under
refer to those who ‘‘will need to indicate their considered health care providers under 29 CFR § 826.90. The Department is also
diagnosis in health care certificates.’’ Id. 825.125. revising § 826.90(b) to correct an
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57687
inconsistency regarding the timing of inconsistent with the statute’s 3102(b) (adding FMLA section
notice for employees who take unambiguous notice provision,’’ which 110(a)(3)), 5111.
expanded family and medical leave. allows an employer to require notice of As it did in the initial April 1, 2020
Sections 826.90 and 826.100 an employee’s reason for taking leave temporary rule, the Department is
complement one another. Section only ‘‘after the first workday (or portion bypassing advance notice and comment
826.90 sets forth circumstances in thereof)’’ for paid sick leave, or ‘‘as is because of the exigency created by the
which an employee who takes paid sick practicable’’ for expanded family and COVID–19 pandemic, the time limited
leave or expanded family and medical medical leave taken for school, place of nature of the FFCRA leave entitlement
leave must give notice to his or her care, or child care provider closure or which expires December 31, 2020, the
employer. Section 826.100 sets forth unavailability. New York, 2020 WL uncertainty created by the August 3,
information sufficient for the employer 4462260, at *12. Accordingly, the 2020 district court decision finding
to determine whether the requested Department is revising § 826.100(a) to certain portions of the April 1 rule
leave is covered by the FFCRA. Section require the employee to furnish the invalid, and the regulated community’s
826.100(f) also allows the employer to listed information as soon as corresponding immediate need for
request an employee furnish additional practicable, which in most cases will be revised provisions and explanations
material needed to support a request for when notice is provided under § 826.90. from the Department. A decision to
tax credits under Division G of the That is to say, an employer may require undertake notice and comment
FFCRA. an employee to furnish as soon as rulemaking would likely delay final
Section 826.90(b) governs the timing practicable: (1) The employee’s name; action on this matter by weeks or
and delivery of notice. Previous (2) the dates for which leave is months, which would be counter to one
§ 826.90(b) stated, ‘‘Notice may not be requested; (3) the qualifying reason for of the FFCRA’s main purposes in
required in advance, and may only be leave; and (4) an oral or written establishing paid leave: enabling
required after the first workday (or statement that the employee is unable to employees to leave the workplace
portion thereof) for which an Employee work. The employer may also require immediately to help prevent the spread
takes Paid Sick Leave or Expanded the employee to furnish the information of COVID–19 and to ensure eligible
Family and Medical Leave.’’ This set forth in § 826.100(b)–(f) at the same employees are not forced to choose
statement is correct with respect to paid time. between their paychecks and the public
sick leave. FFCRA section 5110(5)(E). health measures needed to combat the
However, section 110(c) of the FMLA, as VI. Paperwork Reduction Act
virus. In sum, the Department
amended by FFCRA section 3102, The Paperwork Reduction Act of 1995 determines that issuing this temporary
explicitly states that ‘‘where the (PRA), 44 U.S.C. 3501 et seq., and its rule as expeditiously as possible is in
necessity for [expanded family and attendant regulations, 5 CFR part 1320, the public interest and critical to the
medical leave] is foreseeable, an require the Department to consider the Federal Government’s relief and
employee shall provide the employer agency’s need for its information containment efforts regarding COVID–
with such notice of leave as is collections and their practical utility, 19.
practicable.’’ Thus, for expanded family the impact of paperwork and other
and medical leave, advance notice is not information collection burdens imposed B. Good Cause To Proceed With an
prohibited; it is in fact typically on the public, and how to minimize Immediate Effective Date
required if the need for leave is those burdens. The Department has The APA also authorizes agencies to
foreseeable. Revised § 826.90(b) corrects determined that this temporary rule make a rule effective immediately, upon
this error by stating that advanced does not add any new information a showing of good cause, instead of
notice of expanded family and medical collection requirements. The imposing a 30-day delay. 5 U.S.C.
leave is required as soon as practicable; information collection associated with 553(d)(3). The FFCRA authorizes the
if the need for leave is foreseeable, that this temporary rule was previously Department to issue regulations that are
will generally mean providing notice approved by the Office of Management effective immediately under the EPSLA
before taking leave. For example, if an and Budget (OMB) under OMB control and the EFMLEA pursuant to the good
employee learns on Monday morning number 1235–0031. cause exception of the APA. FFCRA
before work that his or her child’s sections 3102(b) (adding FMLA section
school will close on Tuesday due to VII. Administrative Procedure Act
110(a)(3)), 5111; CARES Act section
COVID–19 related reasons, the This rule is issued without prior 3611(1)–(2). For the reasons stated
employee must notify his or her notice and opportunity to comment and above, the Department has concluded it
employer as soon as practicable (likely with an immediate effective date has good cause to make this temporary
on Monday at work). If the need for pursuant to the Administrative rule effective immediately and until the
expanded family and medical leave was Procedure Act (APA). 5 U.S.C. 553(b) underlying statute sunsets on December
not foreseeable—for instance, if that and (d). 31, 2020.
employee learns of the school’s closure
on Tuesday after reporting for work— A. Good Cause To Forgo Notice and VIII. Executive Order 12866,
the employee may begin to take leave Comment Rulemaking Regulatory Planning and Review; and
without giving prior notice but must The APA, 5 U.S.C. 553(b)(B), Executive Order 13563, Improved
still give notice as soon as practicable. authorizes an agency to issue a rule Regulation and Regulatory Review
Section 826.100(a) previously stated without prior notice and opportunity to
that an employee is required to give the comment when the agency, for good A. Introduction
employer certain documentation ‘‘prior cause, finds that those procedures are Under E.O. 12866, OMB’s Office of
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to taking Paid Sick Leave under the ‘‘impracticable, unnecessary, or contrary Information and Regulatory Affairs
EPSLA or Expanded Family and to the public interest.’’ The FFCRA (OIRA) determines whether a regulatory
Medical Leave under the EFMLEA.’’ As authorizes the Department to issue action is significant and therefore,
noted above, the District Court held that regulations under the EPSLA and the subject to the requirements of the E.O.
the requirement that documentation be EFMLEA pursuant to the good cause and OMB review. Section 3(f) of E.O.
provided prior to taking leave ‘‘is exception of the APA. FFCRA sections 12866 defines a ‘‘significant regulatory
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57688 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
action’’ as an action that is likely to reasons. Payments from employers to The Department’s analysis assumes
result in a rule that (1) has an annual employees for such paid leave, as well that the rule would be reviewed by
effect on the economy of $100 million as allocable costs related to the Compensation, Benefits, and Job
or more, or adversely affects in a maintenance of health benefits during Analysis Specialists (SOC 13–1141) or
material way a sector of the economy, the period of the required leave, is to be employees of similar status and
productivity, competition, jobs, the reimbursed by the Department of the comparable pay. The median hourly
environment, public health or safety, or Treasury via tax credits, up to statutory wage for these workers is $31.04 per
state, local, or tribal governments or limits, as provided under the FFCRA. hour.34 In addition, the Department also
communities (also referred to as The Department is issuing this assumes that benefits are paid at a rate
economically significant); (2) creates revised, new temporary rule, effective of 46 percent 35 and overhead costs are
serious inconsistency or otherwise immediately, to reaffirm, revise, and paid at a rate of 17 percent of the base
interferes with an action taken or clarify its regulations. The Department wage, resulting in a fully-loaded hourly
planned by another agency; (3) reaffirms that paid sick leave and wage of $50.60.36 The Department
materially alters the budgetary impacts expanded family and medical leave may estimates that the total rule
of entitlement grants, user fees, or loan be taken only if the employee has work familiarization cost to employers with
programs, or the rights and obligations from which to take leave, and that fewer than 500 employees, who spend
of recipients thereof; or (4) raises novel employees must receive employer 0.25 hour reviewing the rule, will be
legal or policy issues arising out of legal approval to take paid sick leave or $75,606,027 (5,976,761 firms × 0.25
mandates, the President’s priorities, or expanded family and medical leave hour × $50.60) in the first year. This
the principles set forth in the E.O. As intermittently. The Department narrows results in a ten-year annualized cost of
described below, this temporary rule is the definition of ‘‘health care provider’’ $10.1 million at 7 percent and $8.6
not economically significant. The to employees who are health care million at 3 percent.
Department has prepared a Regulatory providers under 29 CFR. 825.125 and In the initial rule, the Department
Impact Analysis (RIA) in connection employees capable of providing health estimated the costs to employers of both
with this rule, as required under section care services, meaning those who are documentation and of posting a notice,
6(a)(3) of Executive Order 12866, and employed to provide diagnostic and qualitatively discussed managerial
OMB has reviewed the rule. OIRA has services, preventive services, treatment and operating costs and costs to the
designated this rule as not a ‘‘major services, or other services that are Department. The Department does not
rule,’’ as defined by 5 U.S.C. 804(2). integrated with and necessary to the expect these revisions and clarifications
Executive Order 13563 directs to result in additional costs in any of
provision of patient care. In this rule,
agencies to propose or adopt a these categories.
the Department also clarifies that the
regulation only upon a reasoned
information the employee gives the ii. Transfers
determination that its benefits justify its
employer to support the need for leave In the initial temporary rule, the
costs; the regulation is tailored to
should be given as soon as practicable, Department estimated that the transfers
impose the least burden on society,
and corrects an inconsistency regarding associated with this rule are the paid
consistent with achieving the regulatory
when an employee may be required to sick leave and expanded family and
objectives; and in choosing among
give notice of expanded family and medical leave that employees will
alternative regulatory approaches, the
medical leave to their employer. receive as a result of the FFCRA. The
agency has selected those approaches
that maximize net benefits. Executive C. Economic Impacts paid leave will initially be provided by
Order 13563 recognizes that some employers, who will then be reimbursed
benefits are difficult to quantify and 1. Costs by the Treasury Department through tax
provides that, where appropriate and This rule revises and clarifies the credits, up to statutory limits, which is
permitted by law, agencies may temporary rule implementing the paid then ultimately paid for by taxpayers. In
consider and discuss qualitatively sick leave and expanded family and the economic analysis of the initial
values that are difficult or impossible to medical leave provisions of the FFCRA. temporary rule, the Department noted
quantify, including equity, human The Department estimates that these that it lacked data to determine which
dignity, fairness, and distributive revisions will result in additional rule employees will need leave, and how
impacts. familiarization costs to employers. many days of leave will ultimately be
B. Overview of the Rule The Department noted that according used. Because the share of employees
to the 2017 Statistics of U.S. Businesses who will use leave is likely to be only
The temporary final rule promulgated (SUSB), there are 5,976,761 private a partial share of those who are eligible,
by the Department in April 2020 the Department was therefore unable to
firms in the U.S. with fewer than 500
implemented the EPSLA and the quantify the transfer of paid leave.
employees.33 The Department estimates
EFMLEA, as modified by the CARES Certain health care providers and
that all 5,976,761 employers with fewer
Act. The EPSLA requires that certain emergency responders may be excluded
than 500 employees will need to review
employers provide two workweeks (up from this group of impacted employees.
the rule to determine how and if their
to 80 hours) of paid sick leave to eligible This new rule limits the definition of
responsibilities have changed from the
employees who need to take leave from health care provider to employees who
initial temporary rule. The Department
work for specified reasons related to are health care providers under 29 CFR
estimates that these employers will
COVID–19. The EFMLEA requires that 825.125 and other employees capable of
likely spend fifteen minutes on average
certain employers provide up to 12
reviewing the new rule, and that this
weeks of expanded family and medical 34 Occupational Employment and Wages, May
will be a one-time rule familiarization
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leave to eligible employees who need to 2019, https://www.bls.gov/oes/2019/may/oes_
cost. nat.htm.
take leave from work because the
35 The benefits-earnings ratio is derived from the
employee is caring for his or her son or 33 Statistics of U.S. Businesses 2017, https:// Bureau of Labor Statistics’ Employer Costs for
daughter whose school or place of care www.census.gov/data/tables/2017/econ/susb/2017- Employee Compensation data using variables
is closed or child care provider is susb-annual.html, 2017 SUSB Annual Data Tables CMU1020000000000D and CMU1030000000000D.
unavailable due to COVID–19 related by Establishment Industry. 36 $31.04 + $31.04(0.46) + $31.04(0.17) = $50.60.
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57689
providing health care services, meaning If employees still receive pay while on the aggregate, or by the private sector, of
those who are employed to provide leave, they will benefit from being able $165 million ($100 million in 1995
diagnostic services, preventive services, to cover necessary expenses, and to dollars adjusted for inflation using the
treatment services, or other services that continue to spend money to help CPI–U) or more in at least one year. This
are integrated with and necessary to the support the economy. This will have statement must: (1) Identify the
provision of patient care. As discussed spillover effects not only on the authorizing legislation; (2) present the
in the initial temporary rule, according individuals who receive pay while on estimated costs and benefits of the rule
to the SUSB data mentioned above, leave, but also to their communities and and, to the extent that such estimates
employers with fewer than 500 the national economy as a whole, which are feasible and relevant, its estimated
employees in the health care and social is facing unique challenges due to the effects on the national economy; (3)
assistance industry employ 9.0 million COVID–19 global pandemic. summarize and evaluate state, local, and
workers.37 The Department estimated tribal government input; and (4) identify
IX. Regulatory Flexibility Analysis
that this is likely to be the upper bound reasonable alternatives and select, or
of potential excluded health care The Regulatory Flexibility Act of 1980 explain the non-selection, of the least
providers, because some of these (RFA), 5 U.S.C. 601 et seq., as amended costly, most cost-effective, or least
employees’ employers could decide not by the Small Business Regulatory burdensome alternative. Based on the
to exclude them from eligibility to use Enforcement Fairness Act of 1996, cost analysis in this temporary rule, the
paid sick leave or expanded family and Public Law 104–121 (March 29, 1996), Department determined that the rule
medical leave. In this new rule, the requires federal agencies engaged in will not result in Year 1 total costs
Department is narrowing the definition rulemaking to consider the impact of greater than $165 million.
of health care provider, which means their proposals on small entities,
that fewer employees could potentially consider alternatives to minimize that XI. Executive Order 13132, Federalism
be excluded from receiving paid sick impact, and solicit public comment on
their analyses. The RFA requires the This rule does not have substantial
leave and expanded family and medical
assessment of the impact of a regulation direct effects on the States, on the
leave. If more employees are able to use
on a wide range of small entities, relationship between the National
this leave, transfers to employees will be
including small businesses, not-for- Government and the States, or on the
higher. Because the Department lacks
profit organizations, and small distribution of power and
data on the number of workers who
governmental jurisdictions. Agencies responsibilities among the various
were potentially excluded under the
must perform a review to determine levels of government. Therefore, in
prior definition, and how that number
will change under the new definition, whether a proposed or final rule would accordance with section 6 of Executive
the Department is unable to quantify the have a significant economic impact on Order No. 13132, 64 FR 43255 (Aug. 4,
change in transfers associated with this a substantial number of small entities. 5 1999), this rule does not have sufficient
new rule. However, the Department U.S.C. 603 and 604. federalism implications to warrant the
does not expect that this new temporary As discussed above, the Department preparation of a federalism summary
rule will result in a transfer at or more calculated rule familiarization costs for impact statement.
than $100 million dollars annually. all 5,976,761 employers with and fewer XII. Executive Order 13175, Indian
than 500 employees. For the 5,755,307 Tribal Governments
iii. Benefits employers with fewer than 50
This new temporary rule will increase employees, their one-time rule This rule would not have substantial
clarity for both employers and familiarization cost would be $12.65.38 direct effects on one or more Indian
employees, which could lead to an The Department calculated this cost by tribes, on the relationship between the
increase in the use of paid sick leave multiplying the 15 minutes of rule Federal Government and Indian tribes,
and expanded family and medical leave. familiarization by the fully-loaded wage or on the distribution of power and
As discussed in the initial rule, the of a Compensation, Benefits, and Job responsibilities between the Federal
benefits of the paid sick leave and Analysis Specialist (0.25 hour × $50.60). Government and Indian tribes.
expanded family and medical leave These estimated costs will be minimal
provisions of the FFCRA are vast, and for small business entities, and will be List of Subjects in 29 CFR Part 826
although unable to be quantified, are well below one percent of their gross
Wages.
expected to greatly outweigh any costs annual revenues, which is typically at
of these provisions. With the availability least $100,000 per year for the smallest Signed at Washington, DC, this 10th day of
of paid leave, sick or potentially businesses. Based on this determination, September, 2020.
exposed employees will be encouraged the Department certifies that the rule Cheryl M. Stanton,
to stay home, thereby helping to curb will not have a significant economic Administrator, Wage and Hour Division.
the spread of the virus at the workplace. impact on a substantial number of small
entities. For the reasons set out in the
37 A few estimates from other third party analyses preamble, the Department of Labor
confirm that this 9 million figure is reasonable. See X. Unfunded Mandates Reform Act of amends title 29 of the Code of Federal
Michelle Long and Matthew Rae, Gaps in the 1995 Regulations part 826 as follows:
Emergency Paid Sick Leave Law for Health Care
Workers, KFF, Jun. 17, 2020 (estimating that 8.1
The Unfunded Mandates Reform Act
million workers are subject to the exemption), of 1995 (UMRA) requires agencies to PART 826—PAID LEAVE UNDER THE
available at https://www.kff.org/coronavirus-covid- prepare a written statement for rules FAMILIES FIRST CORONAVIRUS
19/issue-brief/gaps-in-emergency-paid-sick-leave- that include any federal mandate that RESPONSE ACT
law-for-health-care-workers/; Sarah Jane Glynn,
may result in increased expenditures by
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Coronavirus Paid Leave Exemptions Exclude
Millions of Workers from Coverage, American state, local, and tribal governments, in ■ 1. The authority citation for part 826
Progress (Apr. 17, 2020) (estimating that 8,984,000 continues to read as follows:
workers are subject to the exemption), available at 38 Statistics of U.S. Businesses 2017, https://
https://www.americanprogress.org/issues/economy/ www.census.gov/data/tables/2017/econ/susb/2017- Authority: Pub. L. 116–127 sections
news/2020/04/17/483287/coronavirus-paid-leave- susb-annual.html, 2017 SUSB Annual Data Tables 3102(b) and 5111(3); Pub. L. 116–136 section
exemptions-exclude-millions-workers-coverage/. by Establishment Industry. 3611(7).
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57690 Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations
■ 2. Amend § 826.20 by revising 1, 2020, to December 31, 2020. An facility, retirement facility, nursing
paragraphs (a)(3) and (a)(4) and adding Employee may not take Paid Sick Leave home, home health care provider, any
paragraph (a)(10), to read as follows: for a substantially similar condition as facility that performs laboratory or
specified by the Secretary of Health and medical testing, pharmacy, or any
§ 826.20 Paid leave entitlements. Human Services where the Employer similar permanent or temporary
(a) * * * does not have work for the Employee. institution, facility, location, or site
(3) Advised by a health care provider where medical services are provided.
* * * * *
to self-quarantine. For the purposes of This list is illustrative. An Employee
this section, the term health care ■ 3. Amend § 826.30 by revising
does not need to work at one of these
provider has the same meaning as that paragraph (c)(1) to read as follows:
facilities to be a health care provider,
term is defined in § 825.102 and 825.125 § 826.30 Employee eligibility for leave. and working at one of these facilities
of this chapter. An Employee may take does not necessarily mean an Employee
* * * * *
Paid Sick Leave for the reason described is a health care provider.
(c) * * *
in paragraph (a)(1)(ii) of this section (v) Further clarifications. (A)
(1) Health care provider—(i) Basic
only if: Diagnostic services include taking or
(i) A health care provider advises the definition. For the purposes of
Employees who may be exempted from processing samples, performing or
Employee to self-quarantine based on a assisting in the performance of x-rays or
belief that: Paid Sick Leave or Expanded Family
and Medical Leave by their Employer other diagnostic tests or procedures, and
(A) The Employee has COVID–19; interpreting test or procedure results.
(B) The Employee may have COVID– under the FFCRA, a health care provider
(B) Preventive services include
19; or is
screenings, check-ups, and counseling
(C) The Employee is particularly (A) Any Employee who is a health to prevent illnesses, disease, or other
vulnerable to COVID–19; and care provider under 29 CFR 825.102 and health problems.
(ii) Following the advice of a health 825.125, or; (C) Treatment services include
care provider to self-quarantine prevents (B) Any other Employee who is performing surgery or other invasive or
the Employee from being able to work, capable of providing health care physical interventions, prescribing
either at the Employee’s normal services, meaning he or she is employed medication, providing or administering
workplace or by Telework. An to provide diagnostic services, prescribed medication, physical
Employee who is advised to self- preventive services, treatment services, therapy, and providing or assisting in
quarantine by a health care provider or other services that are integrated with breathing treatments.
may not take Paid Sick Leave where the and necessary to the provision of patient (D) Services that are integrated with
Employer does not have work for the care and, if not provided, would and necessary to diagnostic, preventive,
Employee. adversely impact patient care. or treatment services and, if not
(4) Seeking medical diagnosis for (ii) Types of Employees. Employees provided, would adversely impact
COVID–19. An Employee may take Paid described in paragraph (c)(1)(i)(B) patient care, include bathing, dressing,
Sick Leave for the reason described in include only: hand feeding, taking vital signs, setting
paragraph (a)(1)(iii) of this section if the (A) Nurses, nurse assistants, medical up medical equipment for procedures,
Employee is experiencing any of the technicians, and any other persons who and transporting patients and samples.
following symptoms: directly provide services described in (vi) The definition of health care
(i) Fever; (c)(1)(i)(B); provider contained in this section
(ii) Dry cough; (B) Employees providing services applies only for the purpose of
(iii) Shortness of breath; or described in (c)(1)(i)(B) of this section determining whether an Employer may
(iv) Any other COVID–19 symptoms under the supervision, order, or elect to exclude an Employee from
identified by the U.S. Centers for direction of, or providing direct taking leave under the EPSLA and/or
Disease Control and Prevention. assistance to, a person described in the EFMLEA, and does not otherwise
(v) Any Paid Sick Leave taken for the paragraphs (c)(1)(i)(A) or (c)(1)(ii)(A) of apply for purposes of the FMLA or
reason described in paragraph (a)(1)(iii) this section; and section 5102(a)(2) of the EPSLA.
of this subsection is limited to time the (C) Employees who are otherwise * * * * *
Employee is unable to work because the integrated into and necessary to the ■ 4. Amend § 826.90 by revising
Employee is taking affirmative steps to provision of health care services, such
obtain a medical diagnosis, such as paragraph (b) to read as follows:
as laboratory technicians who process
making, waiting for, or attending an test results necessary to diagnoses and § 826.90 Employee notice of need for
appointment for a test for COVID–19. treatment. leave.
An Employee seeking medical diagnosis (iii) Employees who do not provide * * * * *
for COVID–19 may not take Paid Sick health care services as described above (b) Timing and delivery of notice.
Leave where the Employer does not are not health care providers even if Notice may not be required in advance,
have work for the Employee. their services could affect the provision and may only be required after the first
* * * * * of health care services, such as IT workday (or portion thereof) for which
(10) Substantially similar condition. professionals, building maintenance an Employee takes Paid Sick Leave.
An Employee may take leave for the staff, human resources personnel, cooks, After the first workday, it will be
reason described in paragraph (a)(1)(vi) food services workers, records reasonable for an Employer to require
of this section if he or she has a managers, consultants, and billers. notice as soon as practicable under the
substantially similar condition as (iv) Typical work locations. facts and circumstances of the particular
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specified by the Secretary of Health and Employees described in paragraph case. Generally, it will be reasonable for
Human Services, in consultation with (c)(1)(i) of this section may include notice to be given by the Employee’s
the Secretary of the Treasury and the Employees who work at, for example, a spokesperson (e.g., spouse, adult family
Secretary of Labor. The substantially doctor’s office, hospital, health care member, or other responsible party) if
similar condition may be defined at any center, clinic, medical school, local the Employee is unable to do so
point during the Effective Period, April health department or agency, nursing personally. Notice for taking Expanded
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Federal Register / Vol. 85, No. 180 / Wednesday, September 16, 2020 / Rules and Regulations 57691
Family and Medical Leave is required as across the Trent River, mile 0.0, in New II. Basis and Purpose, and Regulatory
soon as practicable. If the reason for this Bern, North Carolina. This modification History
leave is foreseeable, it will generally be will allow the drawbridge to be The purpose of this rule is to alter the
practicable to provide notice prior to the maintained in the closed position operating schedule that governs the US
need to take leave. during peak traffic hours and provide 70 (Alfred C. Cunningham) Bridge
* * * * * daily scheduled openings to meet the across the Trent River, mile 0.0, in New
■ 5. Amend § 826.100 by revising
reasonable needs of navigation. Bern, North Carolina. This modification
paragraph (a) to read as follows: DATES: This rule is effective October 16, will allow the drawbridge to be
2020. maintained in the closed position
§ 826.100 Documentation of need for
ADDRESSES: To view documents
during peak traffic hours and provide
leave.
mentioned in this preamble as being daily scheduled openings to meet the
(a) An Employee is required to reasonable needs of navigation. On May
provide the Employer documentation available in the docket, go to https://
www.regulations.gov. Type USCG– 13, 2020, the Coast Guard published a
containing the following information as Notice of Proposed Rulemaking (NPRM)
soon as practicable, which in most cases 2020–0027 in the ‘‘SEARCH’’ box and
click ‘‘SEARCH.’’ Click on Open Docket entitled ‘‘Drawbridge Operation
will be when the Employee provides Regulation; Trent River, New Bern, NC’’
notice under § 826.90: Folder on the line associated with this
rule. in the Federal Register (85 FR 28546).
(1) Employee’s name; There we stated why we issued the
(2) Date(s) for which leave is FOR FURTHER INFORMATION CONTACT: If NPRM, and invited comments on our
requested; you have questions on this rule, call or proposed regulatory action. During the
(3) Qualifying reason for the leave; email Mr. Martin A. Bridges, Fifth Coast comment period that ended June 12,
and Guard District (dpb), at (757) 398–6422, 2020, we received one comment and
(4) Oral or written statement that the email Martin.A.Bridges@uscg.mil. that comment is addressed in Section IV
Employee is unable to work because of of this Final Rule.
SUPPLEMENTARY INFORMATION:
the qualified reason for leave.
* * * * * Table of Contents for Preamble III. Legal Authority and Need for Rule
[FR Doc. 2020–20351 Filed 9–11–20; 5:00 pm] I. Abbreviations The Coast Guard is issuing this rule
BILLING CODE 4510–27–P II. Basis and Purpose, and Regulatory History under authority 33 U.S.C. 499. The US
III. Legal Authority and Need for Rule 70 (Alfred C. Cunningham) Bridge
IV. Discussion of Changes, Comments, and across the Trent River, mile 0.0, in New
DEPARTMENT OF HOMELAND Final Rule Bern, North Carolina, has a vertical
SECURITY V. Regulatory Analyses clearance of 14 feet above mean high
A. Regulatory Planning and Review
B. Impact on Small Entities
water in the closed position and
Coast Guard unlimited vertical clearance above mean
C. Assistance for Small Entities
D. Collection of Information high water in the open position. The
33 CFR Part 117 E. Federalism and Indian Tribal Goverment current operation schedule for the
[Docket No. USCG 2020–0027] F. Unfunded Mandates drawbridge is published in 33 CFR
G. Environment 117.843(a)
RIN 1625–AA09 H. Protest Activities Trent River is used predominately by
I. Abbreviations recreational vessels, sailing vessels, and
Drawbridge Operation Regulation;
pleasure craft. The 16-month average of
Trent River, New Bern, NC CFR Code of Federal Regulations bridge openings, average number of
DHS Department of Homeland Security vessels, and maximum number of bridge
AGENCY: Coast Guard, DHS.
FR Federal Register
ACTION: Final rule. OMB Office of Proposed Management and
openings by month, as drawn from the
Budget data contained in the bridge tender logs
SUMMARY: The Coast Guard is altering NPRM Notice of proposed rulemaking provided by the North Carolina
the operating schedule that governs the § Section Department of Transportation, is
US 70 (Alfred C. Cunningham) Bridge U.S.C. United States Code presented below.
Average Average Maximum
Month openings vessels openings
January ........................................................................................................................................ 28 24 28
February ....................................................................................................................................... 36 28 36
March ........................................................................................................................................... 67 56 67
April .............................................................................................................................................. 204 212 271
May .............................................................................................................................................. 236 265 302
June ............................................................................................................................................. 245 251 306
July ............................................................................................................................................... 199 185 242
August .......................................................................................................................................... 261 260 261
September ................................................................................................................................... 161 163 161
October ........................................................................................................................................ 119 106 119
November .................................................................................................................................... 122 85 122
December .................................................................................................................................... 65 39 65
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Monthly ........................................................................................................................................ 145 139 165
Daily ............................................................................................................................................. 56 54 63
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