DOL Revises FFCRA Regulations in Response to Federal Court Decision Invalidating Parts of the FFCRA

By Lindsay Burke, Carolyn Rashby & Teresa Lewi on September 23, 2020

On September 11, 2020, the U.S. Department of Labor (“DOL”) issued revised regulations to clarify certain rights and employer responsibilities under the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (“FFCRA”). The revisions were made in response to a recent decision of the U.S. District Court for the Southern District of New York (“SDNY”), which invalidated certain provisions of the FFCRA regulations.

The FFCRA, which we discussed here, requires employers with fewer than 500 employees to provide emergency paid sick leave (“EPSL”) and emergency Family and Medical Leave Act leave (“EFMLA”) to employees who meet certain COVID-19-related conditions. DOL issued regulations implementing the FFCRA on April 1, 2020.

In response to the SDNY decision, DOL made the following clarifications (#1-2, below) and revisions (#3-5, below) to the FFCRA regulations, effective September 16, 2020:

Employees are eligible for FFCRA leave only if their employer has work available for the employee to perform; in other words, the qualifying reason for the leave must be the “but-for cause of the employee’s inability to work.”
Employees may take FFCRA leave intermittently only with their employer’s consent.
Employees must provide their employers with the required documentation (including information about their qualifying reason for leave and any other supporting documentation such as a quarantine or isolation order) that supports their need for EPSL and/or EFMLA leave “as soon as practicable.”
Employees who need to take leave must provide the required documentation “as soon as practicable” and not necessarily “prior to” taking the leave.
Employees do not need employer approval to take FFCRA leave to care for their children whose schools are operating on an alternate day basis (or other hybrid attendance schedule), because such leave technically is not intermittent leave. The revised rule explains that “intermittent leave is not needed because the school literally closes [. . .] and opens repeatedly,” and “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

Finally, in response to the SDNY striking down the FFCRA’s definition of “health care provider” as being too expansive, DOL revised the definition to narrow the category of individuals who are considered a “health care provider” and who thus can be excluded by their employer from taking FFCRA leave. The FFCRA’s revised regulations adopt the more narrow definition of “health care provider” under the Family and Medical Leave Act regulations (29 C.F.R. 825.102) and include those 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. Notably, the revision did not change the definition of “health care provider” for purposes of determining who can advise an employee to quarantine or self-isolate.

The DOL’s FFCRA FAQs page has been updated to reflect the new changes to the regulations. The regulations remain in effect through the FFCRA’s expiration date of December 31, 2020.