Department of Labor’s Updated Regulations for FFCRA

The Department of Labor (DOL) published new guidelines on September 16, 2020 that revise and clarify portions of the Families First Coronavirus Relief Act (FFCRA). The new guidelines were issued following a ruling by a New York District Court that declared certain previously issued regulations invalid. These updated regulations relate to the following:

• The requirement of “work availability,”
• The requirement of employer approval for FFCRA leave to be intermittent,
• The definition of “health care provider,” and
• Requirements for notice and documentation.

The new regulations went into effect at the time they were published and will remain in effect until December 31, 2020 when the FFCRA is set to expire.

Work Availability Requirement

The DOL clarified that the work availability requirement applies to all qualifying reasons to take leave under the FFCRA. Thus, the leave may only be taken if the employer has work for the employee. The qualifying reason must be the actual reason the employee is unable to work, rather than not having work to do regardless of whether the qualifying reason occurs. Previously, the work availability requirement was only explicitly applicable to three of the six possible qualifying reasons for leave.

Intermittent Leave Requires Employer Approval

The DOL reaffirmed the requirement that leave under the FFCRA may be taken intermittently only with the permission of an employer. Furthermore, the intermittent leave may only be taken by non-teleworkers for the qualifying reason of caring for a child whose school, place of care, or child-care provider is closed or unavailable due to COVID-19. An employee who is teleworking may take intermittent leave for any qualifying reason as long as the employer consents.

Interestingly, taking leave on alternating full days to care for a child whose school is operating on an alternate-day or hybrid schedule, is not considered intermittent leave. The DOL explained that each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

Definition of “Health Care Provider”

Under the FFCRA, employers of health care providers may exempt such employees from the ability to use the expanded FMLA and Emergency Paid Sick Leave. Initial DOL regulations had broadly defined a “health care provider” who may be excluded from using the leave as anyone employed at several types of health care-related facilities, or who contracted with such a facility for services or maintenance.

This broad definition was invalidated by the court. The definition of health care provider was revised to align with the standard FMLA definition. The application of the exemption will now focus on the role of the employee, rather than the employer. Employers may exempt employees who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely affect patient care. The DOL’s new guidance on this revised definition is lengthy and should be reviewed on a case-by-case basis when applied by an employer.

Notice and Documentation Requirements

The court struck down the requirement that an employee must provide documentation to the employer prior to taking leave under FFCRA. The court reasoned that requiring documentation prior to taking leave is inconsistent with the statute’s unambiguous notice provisions. The provision permits employers to require notice of the reason for taking leave only “after the first workday (or portion thereof)” for emergency paid sick leave, or “as is practicable” for expanded FMLA leave.

The DOL revised its regulations to now require documentation supporting the expanded leave be given “as soon as practicable.” Of course, as the DOL noted, there are occasions that notice given as soon as practicable for expanded FMLA leave will be notice given prior to taking the leave when the need is foreseeable, as in the case of a parent who learns on a Monday that their child’s school will be closed beginning Tuesday.

For further questions, please do not hesitate to reach out to one of our corporate attorneys.

See also Families First Coronavirus Response Act

For additional COVID-19 related information, go to our Coronavirus/COVID-19 Resource Center.