The U.S. Department of Labor (DOL) has issued four revised FFCRA rules, effective September 16, 2020, and updated its FAQs to reflect these revisions. These revised rules are in direct response to a federal court decision that invalidated the previous versions of these four DOL rules on August 3, 2020. (Review our previous article describing the impact of this court decision.)
The Families First Coronavirus Response Act (FFCRA) took effect on April 1, 2020, providing emergency paid sick leave and family and medical leave to employees who are unable to work for reasons related to COVID-19 (coronavirus). The DOL rules detail the requirements and administration of the FFCRA for employers and have been widely relied on during this pandemic. Here are the four revised rules:
Work availability requirement, reaffirmed: The DOL stuck to its guns on this provision but beefed up its explanation. The DOL still says employees aren’t eligible for FFCRA leave if their employer doesn’t have work for them. In other words, the employee can’t use leave if the workplace is temporarily shut down, or if the employee is on furlough or layoff. The latest DOL rules confirm that FFCRA leave is only available to employees who would otherwise be working but for their COVID-19 related need for leave.
Intermittent leave restrictions, reaffirmed but clarified: The latest DOL rule confirms that employees can only take intermittent leave for limited COVID-19 reasons (either when teleworking, so there’s no risk of a sick employee coming to work and spreading the illness, or when needing to care for their child whose school or place of care has closed), and then only if the employer and the employee agree. The DOL contends its requirement for employer consent is justified by longstanding principles on intermittent leave under the federal Family and Medical Leave Act (FMLA). However, this latest DOL rule adds an important clarification for FFCRA leave when an employee’s child participates in a hybrid in-person/remote learning school schedule. The DOL is treating each day the employee’s child isn’t allowed to attend in-person school as a separate reason for FFCRA leave, since the school then “reopens” for in-person attendance on the alternating school day(s). The result is a series of separate leave days needed for the remote learning days, which isn’t considered intermittent leave. (See DOL FAQ #98.) As an employer, this means you must allow employees to take FFCRA leave on those weekdays their child has remote learning, regardless of whether you approve that schedule.
Documentation of leave required, revised: The latest DOL rule changes the timing of when employees must provide documentation to their employer. Under the previous rule, the employee had to provide documentation prior to taking leave even when the need for leave was unforeseeable. The revised rule requires the employee to provide the documentation as soon as practicable. When the need for leave is foreseeable (e.g., advance notice of a school closure), the DOL anticipates that the employee will generally be able to provide notice and documentation before taking the leave.
Definition of “health care provider” that can be excluded from the FFCRA, revised: The original DOL rule essentially allowed employers in the health care industry to exclude all of their workers from FFCRA coverage, regardless of role. The federal district court said the DOL’s interpretation was far too broad. In response, the DOL rule narrows the definition of a “health care provider” who can be excluded from the FFCRA leave entitlement. The revised definition includes employees whose duties are either directly related to the provision of health care services, or whose duties are so closely related to the provision of health care services that patient care would be adversely impacted if those duties aren’t performed. The revised DOL rule specifically excludes employees who don’t actually provide health care services, such as those working in human resources, IT, building maintenance, food service, medical records, and billing.
Tips: Review your FFCRA policy and practices to make sure they’re consistent with these latest changes, and communicate any material changes to employees. Contact your Vigilant Law Group employment attorney if you have any questions. For more information on the FFCRA, see our Model Policy, Families First Coronavirus Response Act Policy, and our Model Form, Families First Coronavirus Response Act Leave Request Form.