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Department of Labor’s revised FFCRA regulations are now in effect

published in McAfee & Taft EmployerLINC | September 22, 2020

On September 16, 2020, the U.S. Department of Labor’s revisions to the Families First Coronavirus Response Act (FFCRA) went into effect nationwide.  The revisions were made to assist employers in interpreting their obligations and implementing compliant leave policies due to the uncertainty created by a decision issued in August by a New York federal court.

The creation of the FFCRA, which became effective on April 1, 2020, implemented two separate paid leave provisions through the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  On August 3, 2020, a New York federal court invalidated the DOL’s previous regulations regarding the “work-availability” requirement, the definition of “health care provider,” provisions related to intermittent leave, and documentation requirements.    This ruling caused the DOL to issue revised guidelines, including:

  • Reaffirming that paid sick leave and expanded family and medical leave may be taken only if the employer has work for the employee to perform   from which to take leave from;
  • Reaffirming that, where intermittent FFCRA leave is permitted by the regulations, an employee must obtain his or her employer’s approval to take the leave intermittently;
  • Revising the definition of “healthcare provider” to mean only employees who are healthcare providers under traditional FMLA regulations and only other employees who are employed to provide diagnostic services, preventative services, or other services that are integrated with and necessary to the provision of patient care;
  • Clarifying that the information the employee must give the employer to support the need for leave should be provided as soon as practicable; and

The DOL articulated that it was issuing “this temporary rule, effectively immediately, to reaffirm its regulations in part, revise its regulations in part, and further explain its provisions” due to the “time-limited nature of the FFCRA leave benefits, the urgency of the COVID-19 pandemic and the associated need for FFCRA leave, and the pressing need for clarify in light of the District Court’s decision . . . .”

These updated regulations address some of the ongoing challenges facing employers in navigating the COVID-19 pandemic.  However, as this situation continues to evolve, it is certain employers with less than 500 employees will still have questions and concerns about their obligations under the FFCRA.  Employers with questions about their obligations related to requests for leave under the FFCRA should consult experienced legal counsel.