Following a decision from a federal court in New York vacating portions of the Families First Coronavirus Response Act (“FFCRA”) regulations, the Department of Labor (“DOL”) recently published revised regulations addressing the court’s decision.

Notably, the revisions establish a new definition for a “health care provider” after the New York court found the previous definition to be overly broad.  The revised regulations define a health care provider the same as the Family and Medical Leave Act (“FMLA”), which is (i) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery; or (ii) any other person determined to be capable of providing health care services.

The revisions also amended other portions of the regulations.  Previously, the regulations directed employers to obtain required FFCRA leave documentation from employees prior to taking leave.  Now, the regulations clarify that employees can submit this documentation to employers as soon as practicable.  Additionally, the revisions state that an employee seeking expanded family and medical leave (“EFMLA”) under the FFCRA should notify their employer as soon as practicable, when before, the regulations did not address the timeframe in which employees needed to notify employers of their need for leave.

Despite being directed to do so by the federal court, the revisions did not amend portions of the regulations which limit FFCRA leave to employees who have work otherwise be available to them, and that require an employer’s approval to take FFCRA leave intermittently.  However, the DOL provided additional explanations for these regulations should they be challenged again.

Furthermore, the DOL addressed employee requests for intermittent EFMLA when the employee’s child is enrolled in a school with an alternate date or other hybrid-attendance program.  The DOL stated that “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”  As a result, the DOL states, intermittent leave is not needed for employees whose children are enrolled in such a program.  Rather, intermittent leave would apply in a situation where the school or daycare is closed for a period of time, and the employee only seeks leave for “certain portions of that period for reasons other than that school’s in-person instruction schedule.”   That being said, the regulations still require employer approval for intermittent leave.

The revised regulations go into effect on September 16, 2020.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Yesterday, a federal court vacated portions of the Families First Coronavirus Response Act (“FFCRA”) regulations.  In April, the U.S. Department of Labor (“DOL”) issued regulations interpreting the FFCRA, which provides paid leave time to employees impacted by COVID-19.  The New York Attorney General challenged portions of the regulations, and the matter proceeded to a U.S. District Court in New York.

Specifically, the court addressed the following parts of the FFCRA regulations:

• The regulations contained a rule excluding benefits from employees whose employers did not have work available for them. The court vacated this exclusion.
• The regulations defined a “health care provider” that could be excluded from FFCRA benefits. The court vacated this definition.
• The regulations required that an employer consent to an employee’s request for intermittent leave. The court vacated this requirement.
• The regulations required an employee to submit certain documentation ahead of being granted leave under the FFCRA. The court vacated this requirement.

We are monitoring this matter closely and await revised regulations from the DOL.  In the interim, employers should revise FFCRA leave practices consistent with the above changes.  For example, an employer should accept requests for intermittent leave, and should not require an employee to submit a written request for leave in order for the employer to consider providing such leave.

If you have questions regarding this advisory, addressing FFCRA leave going forward, or labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On August 14, 2020, the new Title IX regulations, enforced by the U.S. Department of Education (“DOE”), will go into effect. As discussed in our May 13, 2020 advisory on this topic, available here, the regulations have many new requirements for sexual harassment policies and procedures that need to be in effect by August 14, 2020.

There is currently litigation pending to stay the implementation of these new regulations; however, it is unlikely that such litigation will be resolved prior to the date the new regulations are due to take effect.  Additionally, several organizations and school districts have asked the DOE to delay the implementation of these new regulations.  However, as of today, these requests have not resulted in a change to the August 14^th effective date.

Therefore, absent a delay in the implementation date for these new regulations, which at this time seems unlikely, school committees will need to update their sexual harassment policies and procedures to bring them into compliance with these new regulations by August 14^th.  In addition, the new regulations require training on the revised policies and procedures for all administrators serving as Title IX coordinators, investigators, and decision makers  Our office is available to review and update policies as well as to provide the required training for administrators.

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

Last week, the Appeals Court issued a decision in City of New Bedford v. New Bedford Police Union (97 Mass. App. Ct. 502) affirming a Superior Court’s decision vacating an arbitration award that found the City of New Bedford (“City”) violated the parties’ collective bargaining agreement with the New Bedford Police Union (“Union”) “when it assigned officers to perform background investigations during their normal work hours in addition to their typical duties.”

The Union filed a grievance alleging that the Chief was assigning officers to perform background checks of employment applicants in addition to their regular duties during working hours in violation of the parties’ CBA. The agreement contained a requirement that officers must be assigned full time to performing background checks, as well as several other provisions related to performing these checks. The City denied the grievance arguing that the parties’ CBA did not preclude the Chief from assigning investigations to officers as part of their required duties. The matter proceeded to arbitration.

The arbitrator issued an award in favor of the Union, finding a violation of the CBA. The arbitrator found that the swift completion of background checks was the only public safety concern implicated and therefore that the Chief was required to make assignments in accordance with the agreement. The arbitrator rejected the Chief’s view as to how best to serve the City’s public safety needs, opining instead that the City was simply attempting to avoid overtime payments to officers.

The City filed a complaint in Superior Court, and a Superior Court judge vacated the award on the grounds that “the arbitrator exceeded his authority by substituting his judgment and decision making for that of the police chief.”

On appeal, the Union argued that the grievance did not concern the assignment of background investigations, but rather the method of effectuating the assignments and therefore the City was required to follow the terms of the CBA. The Appeals Court disagreed with the Union’s argument and held that the assignment of officers was “neither subject to collective bargaining, nor delegable to arbitration.” The Appeals Court found that “controlling precedent” required the finding that the provision in the collective bargaining agreement infringed upon the nondelegable authority of the Police Chief. The Court also held that under Massachusetts law, a municipality cannot be required to surrender this nondelegable authority or do so voluntarily.

If you have questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Last week, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 14, 2020.  These regulations require training and changes to school district policies and procedures regarding sexual harassment.  Among the changes are:

Notice of Sexual Harassment
The regulations require a school district to respond when the district has actual notice of sexual harassment.  The new regulations now make explicit that a K-12 school district has actual knowledge when an allegation is made known to any district employee.

Complaint and Investigation Process
The new regulations require the involvement of three different individuals to address sexual harassment complaints: the complaint manager (usually the Title IX Coordinator); the investigator, and the decision-maker.  Under the new regulations, all individuals involved in managing, investigating, and deciding sexual harassment complaints must be trained on conducting investigations free of bias.

The new regulations require that the alleged harasser, referred to as the respondent, receive written notice of the allegations before any investigatory interview.  During the investigation, the complainant and respondent must have equal opportunities and time to present and respond to evidence.

A school district may facilitate an informal resolution such as mediation provided that the complainant and the respondent consent, but the school district cannot compel the complainant or respondent to engage in an informal resolution.  Informal resolutions are never available in situations where an employee is alleged to have sexually harassed a student.

Notice of Title IX Coordinators
Previously, school districts only needed to notify students and employees of the Title IX Coordinator’s contact information.  Now, school districts must also notify applicants for employment, parents and guardians of students, and unions of the Title IX Coordinator’s contact information.

Definitions
The new regulations narrowed the definition of sexual harassment into three categories.  Under the new regulations, one category of sexual harassment is unwelcome conduct that is severe, pervasive and objectively offensive that it denies educational access.  This deviates from prior guidance issued by the DOE that previously stated that the conduct had to be severe, pervasive or objectively offensive.

Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence.  The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).

Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August  14^th and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints.  Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding the new regulations, please contact us.

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.