Department of Labor Revises the FFCRA Regulations

September 21, 2020

On September 11, the U.S. Department of Labor (DOL) issued a revised version of its regulations pertaining to the Families First Coronavirus Response Act (FFCRA). The regulations are a “temporary rule” interpreting and implementing certain FFCRA leave provisions which, unless extended by Congress, will expire at the end of the year. The DOL’s revised rule, which became effective September 16, was necessitated by a federal court decision.

In August a federal judge in New York held that four parts of the temporary rule are invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

The DOL’s revised rule does not change all the provisions the court found to be invalid. In response to the court’s ruling, the DOL issued the revised rule “to reaffirm its regulations in part, revise its regulations in part, and further explain its positions.” The following excerpt from the revised rule summarizes the DOL’s response:

1. The Department reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave and explains further why this requirement is appropriate. This temporary rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.

2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the Department’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently under § 825.50 and explains further the basis for this requirement.

3. The Department revises the definition of “health care provider” under § 825.30(c)(1) to mean employees who are health care providers under 29 CFR 825.102 and 825.125,3 and other employees 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.

4. The Department revises § 826.100 to clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable.

5. The Department revises § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.

The revised rule provides detailed explanations of the DOL’s position on each issue, and the changes made to the regulations. The revised rule is here.

As a result of the changes to its temporary rule, the DOL also updated its Q&A relating to the FFCRA. The Q&A is here.