Revised FFCRA Regulations from DOL Set to Become Effective Today, September 16, 2020

On September 11, 2020, the United States Department of Labor (“DOL”), citing the “pressing need for clarity,” issued revised Family First Coronavirus Response Act (“FFCRA”) regulations following the August 3, 2020 New York Federal District Court decision that struck provisions interpreting the FFCRA. The regulations will be published and take effect today, September 16, 2020.

The revised regulations from the DOL are provided “to reaffirm its regulations in part, revise its regulations in part, and further explain its positions.”

In summary:

1. Work Availability Still Required. The DOL made no changes to the requirement that – there is no work available due to business closures, furloughs, etc. – there is nothing from which the employee needs to take a leave of absence from. The regulation and summary reiterates that FFCRA benefits are only available if an employer has “available work” for an employee, which the employee cannot perform, due to a FFCRA qualifying reason. In other words, an employee may only take paid sick leave or expanded FMLA leave to the extent that any qualified reason is the “but for” cause of his or her inability to work. This is consistent with the regular FMLA regulations.

2. New Definition of Health Care Provider. The DOL revised, and narrowed, its definition of “health care provider,” for the purposes of excluding certain workers from FFCRA benefits. In the original rule, the DOL focused on the types of employers that could exercise the FFCRA health care provider exemption. The DOL’s new definition focuses on employees whose duties or capabilities are directly related to the provision of health care services or are “so integrated to provision of such services so as to adversely impact patient care if not provided."

The DOL drew upon the definition of “health care service” in the Pandemic Hazard Preparedness in Advance Innovation Act of 2019, to identify relevant health care services. The DOL narrowed the FFCRA exclusion to workers who are employed to provide the following services – diagnostic, preventative, treatments or services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care. 29 CFR § 825.30 (c ) (1). In its summary, the DOL specifically excluded positions such as “IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers," whose job duties could affect the provision of health care, but do not provide covered health care services.

3. Some Intermittent Leave Will Require Employer Consent. The DOL clarified that intermittent leave under the FFCRA still requires an employer’s consent under certain circumstances. The DOL noted intermittent leave was not addressed in the FFCRA statutory language, and Congress granted the Department regulatory authority to effectuate the purposes of the E-PLFSA and the E-FMLA and to ensure consistency between the two laws. The DOL further noted that the FFCRA leave obligations should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave."

The DOL’s summary uses an illustration of an intermittent leave situation under the FFCRA, addressing when a child participates in a hybrid learning situation such as operating on an adjusted or altered school schedule. The DOL clarifies that each full day of a school closure, “constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” The comments clarify that under the FFCRA a full single day of leave is not considered “intermittent,” and an employee does not need the employer’s consent to take off Monday, Wednesday, and Friday due to a child’s school closure because each of these days are separate school closures, which automatically entitles the employee to FFCRA leave. However, if an employee has a child who participates in a hybrid learning situation, such as when the school only operates on a half day, the employee will either need to take continuous leave for a full day under the FFCRA, or obtain employer consent to use the leave intermittently in partial day increments, to accommodate the child’s school schedule.

4. Slight Changes in Notice and Documentation Requirement. The DOL slightly revised the notice and documentation requirements for FFCRA leave. The new regulation states that “notice may not be required in advance, and may only be required after the first work day (or portion thereof) for which an employee takes Paid Sick Leave. After the first work day, it would be reasonable for an employer to require notice as soon as practicable under the circumstances of the particular case.” (29 CFR § 826.90). The regulation allows for notice also to be given by the employee’s …”spokesperson, a spouse, adult member, or other responsible party" if the employee is unable to do so. The documentation required must contain the following information:

(a) Employee’s name;

(b) Dates for which leave is requested;

(c) Qualifying reason for leave; and

(d) Oral or written statement that employee is unable to work because of the qualified reason for leave.