DOL Issues New Regulations for FFCRA

Last week, I posted (belatedly) about a NY District Court decision invalidating four provisions of the DOL Rules for the FFCRA. Yesterday, the DOL released revised rules that will go into effect on September 16, 2020. Here are the highlights:

Work Availability: The DOL 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 clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave. Accordingly, Section 826.20(a)(3), (a)(4) are amended to state explicitly, as Section 826.20(a)(2), (6), and (9) do, that an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform.

Intermittent Leave: The DOL reaffirms that, where intermittent FFCRA leave is permitted by DOL regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently under Section 825.50.

Definition of Health Care Provider: The DOL clarified that there are two different categories of “health care provider” in the FFCRA: (i) providers who are qualified to advise an employee to isolate or quarantine; and (ii) individuals who are employed to perform health care services who were previously excluded from coverage by the FFCRA. In the amended rule, the DOL clarifies that the definition of “health care provider” for purposes of ordering isolation or quarantine to justify FFCRA sick leave is the same as the definition of health care provider under the FMLA. Health care providers who may be excluded by their employers from taking FFCRA leave include: “any other Employee who is capable of providing health care services, meaning he or she is 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.”

The new rule also makes clear that: “Employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” These employees are, therefore, entitled to leave under the FFCRA.

Documentation: The DOL amended Section 826.100 to clarify that the documentation to establish a need to take leave need not be given “prior to” taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice of the need for leave under Section 826.90. The DOL clarified, however, that since advanced notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave.

The draft amended DOL rule is here:

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