News & Announcements

DOL Revises FFCRA Paid Leave Regulations

Posted Tuesday, September 15, 2020

As noted previously, on August 3, a New York federal judge issued a decision finding four provisions of the Families First Coronavirus Response Act (“FFCRA”) invalid.  In response, on September 11, the U.S. Department of Labor posted revisions to regulations that implemented the FFCRA’s paid sick leave and expanded family and medical leave provisions:

  • Work-Availability Requirement and But-For Causation: Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave (for any of the six qualifying reasons) only if work would otherwise be available to them.
  • Employer Approval for Intermittent Leave: Reaffirms and provides additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
  • Revision to “Health Care Provider” Definition: Revises the definition of “health care provider” for purposes of determining which employees an employer can exclude from FFCRA leave. “Health care provider” includes only employees who meet the definition of that term under the Family and Medical Leave Act regulations (29 CFR 825.102 and 825.125) or who are employed to provide diagnostic services (e.g., taking/processing samples, performing or assisting in the performance of x-rays or other diagnostic procedures); preventative services (e.g., screenings, check-ups, and counseling to prevent health problems); treatment services (e.g., performing surgery, administering prescribed medication, and providing breathing treatments); or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care (e.g., bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples). It is not enough that an employee works for an entity that provides health care services. The rule provides several examples:
    • Examples of Health Care Providers: nurses, nurse assistants, medical technicians, and laboratory technician who processes test results.
    • Examples of Non-Health Care Providers: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.
  • Revised Notice Requirements: Reaffirms that notice may not be required in advance and may only be required after the first workday (or portion thereof) for which an employee takes paid sick leave under the FFCRA.  For expanded family and medical leave, however, advance notice is required as soon as practicable.  If the need for leave is foreseeable, that will generally mean providing notice before taking leave.
  • Revised Documentation Requirements: Employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable, which in most cases will be when notice is provided.  Documentation no longer needs to be given prior to taking paid leave.

The revisions will become effective upon publication in the Federal Register (scheduled for September 16).

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