DOL Clarifies FFCRA Regulations
By Joshua P. Lushnat, Ogletree Deakins | 09/28/20

On September 11, 2020, the U.S. Department of Labor (DOL) revised its regulations in response to a court decision invalidating several provisions of the DOL’s final rule implementing the emergency family leave and paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA). The decision, from the U.S. District Court for the Southern District of New York, struck down the DOL’s original regulation regarding (1) the requirement that employers actually have work available for employees in order to be eligible for leave, (2) the broad definition of health care provider under the final rule, (3) the requirement that employees obtain employer approval for intermittent leave, and (4) the requirement that employees provide documentation before taking FFCRA leave.

The DOL responded to this decision with revised regulations modifying some portions but reaffirming others, where it ceded no ground to the SDNY’s decision. The revisions became effective on September 16, 2020, and do the following:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently
  • Revise 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
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers

One of the most notable revisions is the narrowing of the health care provider definition. The original rule, with which the SDNY federal court took issue, provided a much broader definition that arguably exempted any employee of a health care entity from coverage, regardless of the employee’s specific job function. The new, more limited, definition will certainly narrow the scope of the health care provider exemption. Additionally, the reaffirmation that work must be available for the employee to be entitled to any applicable leave under the FFCRA relieves employers from having to extend leave to employees that may be temporarily furloughed during the pandemic due to a shortage of work.

These revised regulations demonstrate how the DOL will continue to interpret the FFCRA until its December 31, 2020, expiration—absent further modification. Additional changes could come at any time as the DOL alters its stance or makes revisions in response to any further court action. For example, at the time of writing this, the DOL still has time to appeal the SDNY decision. The DOL also made corresponding revisions to its robust frequently asked questions.

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