The Federal Department of Labor (DOL) issued revised rules on leave under the Families First Coronavirus Response Act (FFCRA) in response to a ruling by a federal district court in New York that struck down four provisions of the FFCRA leave regulations. The court had held that the DOL exceeded its authority to interpret the FFCRA in the rules regarding:
- The definition of health care provider as it relates to employees who are excluded from the paid leave benefits of the FFCRA;
- Employee documentation requirements to support requests for leave;
- The work-availability requirement as a prerequisite for taking leave; and
- Employer consent and restrictions on the use of intermittent leave.
In response, the DOL narrowed the definition of “health care provider” as it relates to employees who are excluded from eligibility for FFCRA leave from the original regulation to now cover employees who are health care providers under the Family and Medical Leave Act. In addition, employees who provide diagnostic, treatment or preventive services, or other services that are integrated with and necessary to the provision of patient care are also included.
The DOL also clarified that an employee no longer must provide documentation before taking leave, and may instead provide it “as soon as practicable.”
Additionally, the DOL reiterated its rule that there must actually be work available for the employee in order for them to be eligible to take FFCRA leave. This provides clear guidance that employees who are laid off or furloughed are not eligible for FFCRA leave during those time periods.
The DOL also reaffirmed that an employee must have the employer’s consent to take intermittent leave under FFCRA. They stated that the employee’s need for leave should be balanced with the employer’s interest in avoiding work disruptions.
What’s Next?
The revised rules are scheduled to be published in the Federal Register today, September 16, 2020, and will take effect the same day. The DOL has also updated its FFCRA FAQs to reflect the revised regulations.