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DOL Updates FFCRA Regulations in Light of NY Federal Court Decision

by | Sep 18, 2020 | blog |

As we blogged last month, a New York federal court invalidated four key provisions of the Department of Labor’s regulations on the Families First Coronavirus Response Act (FFCRA).  Under the FFCRA, employers must provide employees up to two weeks (80 hours) of paid sick leave and up to 10 weeks of paid emergency family and medical leave.  The NY court held:

  1. Availability of work is not a prerequisite for FFCRA leave;
  2. The regulations defined “health care provider” too broadly;
  3. Employer consent is not needed for intermittent leave; and
  4. Documentation is not required before taking FFCRA leave

In response to the court’s decision, the DOL recently updated its FFCRA regulations and largely reaffirmed the agency’s original interpretation of the statute.

Work Availability Still A Requirement

The updated regulations state that 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.”  The updated regulations clarified that the work availability requirement applies for all the qualifying reasons an employee can take FFCRA leave:

Employer Consent Still Required for Intermittent Leave

Despite the NY Court’s decision, the DOL also reaffirmed the employer consent requirement.  According to the DOL, the FFCRA does not explicitly address intermittent leave, and therefore the DOL claims that it is free to exercise its discretion to adopt a consent requirement.  However, the updated regulations also say that parents whose children are attending school on a “hybrid schedule” don’t need employer approval to take leave on the days when their children are attending school from home.

Notice Requirements

While the DOL’s original regulations required employees to give documentation to employers prior to taking FFCRA leave, the updated regulations say that documentation should be given “as soon as practicable.”

Definition of “Health Care Provide” Narrowed

In response the NY court’s holding that the term was defined too broadly by the DOL, the updated regulations narrowed the definition of “health care provider” and state that “is not enough that an employee works for an entity that provides health care services.”  To qualify as a health care provider, an employee must qualify as a health care provider under the FMLA and “provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

If you have any questions about the FFCRA, or any area of employment law, contact Thatcher Law Firm at Email me at [email protected].

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