Effective September 16, 2020, the Department of Labor (DOL) announced the release of revised regulations under the Families First Coronavirus Response Act (FFCRA). The revised regulations came after a New York court decision invalidated several parts of the FFCRA’s rules. The new, updated regulations did not change too much for non-healthcare employers, but here is what you need to know about the changes.
First, DOL reaffirmed when paid sick leave days and emergency FMLA leave is available to employees. The new regulations confirm that paid benefits are available only if the employer has work available from which an employee can take leave. So, employees that are laid off or on furlough, are not eligible for these benefits. Said in other words, an employee can take paid sick leave and expanded family and medical leave only when the qualifying reason is the reason for his/her inability to work. Work must be available, but employers may not arbitrarily withhold work just to avoid having to provide these benefits.
Second, DOL advises that intermittent leave under the Emergency FMLA leave can only be taken with the approval of the employer. However, they clarified what intermittent means for employees that have school that offers a hybrid schedule – some days in school and some days remote. The DOL clarified that when the child’s school or place of care is closed, each closed day constitutes a new and separate reason for FFCRA. So, when schools open and close repeatedly (hybrid model), each single day is not considered intermittent, and the employee does not need the employer’s consent to take off on the days that school or childcare is closed.
Third, the exemption for health care providers was adjusted. Originally, health care providers were able to assert an exemption from offering FFCRA benefits to their employees based on their status as a health care provider. The DOL amended the definition of “health care provider” to focus the definition on position-specific roles and limited the exemption to employees that have duties and capabilities that are directly related to the providing of health care services, or are so integrated to the services so as to adversely impact patient care if not provided. So, health care providers do not have a blanket exemption to the FFCRA benefits, but the exemption may be asserted for critical employees performing diagnostic, preventative and treatment services, or other services integrated with and necessary to patient care. The regulations provide additional definitions for diagnostic, preventative, treatment and integrated terms, to give employers more guidance (and a list of types of employees that probably meet the test).
Lastly, DOL updated and relaxed the timeline for when employees need to give an employer notice of the need for leave, as well as when supporting documentation must be submitted. Rather than requiring the notice and supporting documentation before the leave begins, the regulations now use “as soon as practicable” and that in most cases this will be when an employee provides notice of the need for FFCRA leave. For employees needing emergency FMLA for childcare or school closing that is foreseeable, they must provide advance notice before taking leave. While the original regulations state that an employer may not require that the notice include documentation beyond what is allowed in the FFCRA, it also states that employees are expected to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Read all the DOL Frequently Asked Questions (FAQs) here.