DOL Clarifies FFCRA in Revised Regulations

By: Jessica Jackler

On September 11, the DOL issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a New York federal court’s ruling that invalidated certain provisions of the FFCRA. The revised regulations became effective September 16.

The revised regulations specifically address four issues:

1. Whether FFCRA leave may be taken only if the employer has work available for that employee;
2. Whether intermittent leave under the FFCRA can only be taken with employer approval;
3. The definition of “health care provider”
4. The timing of notice and the documentation an employee must provide to an employer in taking leave under the FFCRA

Work Availability Requirement

Prior to the revised regulations, FFCRA leave could only be taken if the employer had work available for that employee when the need for leave occurred. If the employee was otherwise laid off, on furlough or the business itself was closed, then the employee was not eligible for leave. The revised regulations confirm this requirement and explain that the qualifying reason for leave must be the “but-for cause” of the employee’s inability to work. For example, if there is no work for an employee to perform due to circumstances such as a worksite closure, then the qualifying reason would not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.

Employer Approval for Intermittent Leave

The DOL’s revised regulations reaffirm that where intermittent FFCRA leave is permitted, an employee must obtain his or her employer’s approval. The DOL further explains that intermittent leave occurs only when the employee’s periods of leave are interrupted with periods of reporting to work (or telework). In contrast, an employee who works a schedule that itself could be characterized as ‘‘intermittent’’ or sporadic (ie: several days off in between each shift), is not taking intermittent leave where the periods between the shifts for which leave is used are periods during which the employee was not scheduled to work.

Definition of “Health Care Provider”

The original FFCRA regulations allowed employers to exclude “health care providers” from taking leave. The original definition of “health care provider” was very expansive and exempted many workers from FFCRA leave even if they were not traditional healthcare providers, such as IT professionals, billers and HR professionals working in the healthcare industry. The revised regulations now narrow the definition to include only employees who meet the definition of that term under the traditional FMLA regulations or who are “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

Notice and Documentation

The revised regulations further confirm that an employee must provide an employer with the required documentation and information “as soon as practicable.” If the need for leave is foreseeable, it will generally mean providing notice before taking leave. For example, if an employee learns on Monday morning before work that his or her child’s school will close on Tuesday due to COVID–19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—ie: an employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice, but must still give notice as soon as practicable.

Additionally, the prior regulations previously stated that an employee is required to give the employer certain documentation prior to taking leave. They now require the employee to furnish the required information as soon as practicable, which in most cases will be when notice is provided.

Practice Tip:

Now that the revised regulations are effective, employers should familiarize themselves with the changes. As a reminder, the FFCRA is still set to expire on December 31 and there is currently no mention of expanding the deadline. For more information about employer obligations under the FFCRA and these new changes, please contact us.