September 17, 2020Client Alert

Department of Labor Issues Revised Temporary Families First Coronavirus Response Act Rule

In response to a ruling by the Federal District Court for the Southern District of New York, the U.S. Department of Labor (DOL) issued a revised temporary Families First Coronavirus Response Act (FFCRA) rule, effective September 16, 2020. In summary, these revisions:

  • Clarify that the FFCRA allows employees to take paid leave only if work is available to the employee at the time of the request for leave. Employees requesting leave under the FFCRA are eligible only to the extent work is available to them from  their employer. Effectively, this means if an employer has closed a worksite, even temporarily, employees affected by the closure are not eligible to take leave under the FFCRA because no work is available at the time of the request.
  • Clarify that an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently. The Department has reaffirmed its intent that employers can dictate how and when intermittent leave may be used under the FFCRA. It bears mention, however, that DOL guidance also points out that an employee who is taking leave for periodic school closures (e.g., a child subject to in-person classes on Monday, Tuesday, and remote classes on Wednesday, Thursday, Friday) could take Wednesday – Friday off each week in subsequent weeks and would not, in the DOL’s view, be taking intermittent leave. In such a situation, the employee would not need employer permission for the periodic absence.
  • Clarify that employees must provide the employer supporting documentation for FFCRA leave as soon as practicable. This addresses a gap in the former guidance where supporting documentation was explained without a clear timeline for submission.
  • Correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer. Advance notice of expanded family medical leave is required as soon as practicable. If the need for leave is foreseeable, that will generally mean providing notice before taking the leave.
  • Revise the definition of “health care provider” to mean employees who are health care providers under 29 C.F.R. 825.102 and 825.125 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. Perhaps the most material change to the revised FFCRA rule is the clarification on which employees qualify for the so-called “Health Care Exemption,” which enables an employer to exclude an employee from eligibility to take FFCRA leave. Prior to this revised rule, DOL’s position was that any employee working for any health care provider would be included in the exemption. The Court disagreed, finding the definition was too broad. In its revised rule, the DOL stated simply working for a health care provider does not make the employee exempt as a health care worker. Instead, the DOL clarified that two categories of employees  qualify for the exemption: (1) health care professionals, as defined in the Family Medical Leave Act (which means any provider from whom the employer would have previously accepted a health care provider certification for FMLA leave); and (2) employees who provide diagnostic, preventative, treatment, or other services integrated and necessary to patient care such that loss of these positions would negatively impact patient care. Examples of health care providers are cited in the revised regulations, including, but not limited to, Medical Doctors, Physician Assistants, Nurse Practitioners, Nurses, Nurse Assistants, Medical Technicians, and Lab Technicians. All other employees working for a health care provider must be permitted to take leave under the FFCRA if otherwise eligible.

Responding to and handling requests for leave under the FFCRA can be confusing for employers, particularly when navigating exemptions and intermittent leaves of absence. We recommend contacting your Michael Best attorney if you have any specific questions regarding the DOL’s revised FFCRA rule or another aspect of the FFCRA

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