On September 11, the U.S. Department of Labor (DOL) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions both clarify and affirm some of the DOL’s original positions.
The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the NYS District Court’s August 3 decision that found portions of the regulations invalid.
The revisions do the following:
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
- Revise the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
The revisions to the temporary rule became effective on September 16, 2020.
The DOL has also revised its FFCRA Q&A to reflect these changes.
Next Steps for Employers
As some of the affirmations remain in conflict with the court ruling, it is possible that the same parties that challenged the initial version of these rules, including the state of New York, will once again file a legal challenge attacking this second set of rules. However, it is uncertain whether any such challenge would be successful, and therefore employers need to proceed as if these set of rules are the new law.
It is also critical for employers in the healthcare industry to review and adjust to these changes as they can no longer exclude all workers from FFCRA coverage. Healthcare employers may need to seek counsel in determining which employees are now entitled to FFCRA leave.
It is unlikely the DOL would pursue enforcement actions against any employer who relied upon the regulations prior to the court’s order or the revised Final Rule; however, to the extent employers have questions about whether they should take any actions to mitigate liability based on prior actions, they should consult with their legal counsel to discuss strategy and approach.
Employers are also advised to stay updated on developments in these areas to ensure their FFCRA leave policies comply with the law. Employers should also check state and local laws for additional leave requirements.