DOL Revises FFCRA Regulations

The U.S. Department of Labor (DOL) has revised its regulations interpreting the Families First Coronavirus Response Act (FFCRA). These changes were made to address the ruling of a New York federal court that invalidated certain portions of the original regulations. In response to that decision, the DOL has made the following clarifications and/or changes:

• Work-availability rule: The DOL reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. Rather than change its position on this issue, the DOL offers further explanation to support its interpretation of the FFCRA. It does, however, clarify that the work-availability requirement applies to all qualifying reasons for paid sick leave and expanded family and medical leave. The DOL cautions that “[t]here must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform” as employers may not “make work unavailable in an effort to deny FFCRA leave.”
• Intermittent leave: The DOL also reaffirms its position that an employee must obtain his or her employer’s approval to take intermittent paid sick leave or expanded family and medical leave. Notably, the DOL explains that employer approval “would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent.” It explains: “Under the FFCRA, intermittent leave is not needed because the school literally closes . . . and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.”
• Definition of health care provider: The DOL narrows the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or 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 impact patient care.
• Notice and documentation of need for leave: The DOL revises its regulations to clarify that the documentation required for leave need not be given “prior to” taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable. The DOL also revises its regulations to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave — advanced notice is required as soon as practicable, which will generally mean before taking leave if the need for leave is foreseeable.

These revised regulations became effective September 16, 2020. We encourage employers to determine whether their FFCRA policies and practices require adjustment. As always, KZA attorneys are available to help you navigate these changes.

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