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Families First Coronavirus Response Act (FFCRA)

Recent Updates by DOL

Last Updated:  September 15, 2020

FFCRA became law on March 24, 2020, and in the weeks that ensued, the federal Department of Labor (DOL) published numerous Q&As and issued final regulations. After what seemed like months of constant updates and new learning, employers were finally feeling like they knew their way around these two new benefits – Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA). Until now…

On August 3, 2020, the U.S. District Court for the Southern District of New York struck down four of the DOL’s rules regarding FFCRA. On September 11, 2020, the DOL issued revised regulations to address the elements challenged by the court.

Availability of Work

  • DOL’s Original Rule: Employees are only eligible for EPSL or EFMLA if a qualifying reason prevents the employee from performing work that is available at the time the leave is needed.
  • The Court: Whether or not work is available at the time the employee needs leave is not relevant. If the employee is still technically employed – even if not actively working – FFCRA must be granted. This means, for example, that furloughed employees must be provided paid FFCRA if they otherwise qualify.
  • DOL’s Updated Rule: The DOL held to its original position that a leave means that the employee is absent from work. If there is no work to be performed, the concept of leave does not exist. They reminded employers that employees who have no work to perform are eligible for unemployment benefits.

Documentation

  • DOL’s Original Rule: Employees can be required to provide documentation to their employer prior to taking FFCRA leave.
  • The Court: Employers may require documentation but cannot prevent an employee from starting leave pending receipt of this information.
  • DOL’s Updated Rule: The DOL clarified that employee leave cannot be denied pending documentation and that employees are required to provide any required documentation to the employer as soon as practicable.

 Intermittent Leave

  • DOL’s Original Rule: Employees must get approval from their employer before being able to use intermittent leave for childcare purposes when their children’s school or place of care is closed due to COVID-19.
  • The Court: The employer must allow use of intermittent leave if the employee needs time off to care for children due to school or childcare closure as a result of COVID-19.
  • DOL’s Updated Rule: The DOL held to its original position that leave related to childcare reasons may only be taken intermittently with permission from the employer. They did however clarify what would be considered intermittent leave. For example, if an employee’s child’s school is closed on Tuesdays and Thursdays, and that employee then takes Tuesdays and Thursdays off, this would not be considered intermittent leave but instead 2 separate instances of needing FFCRA leave. In contrast, if an employee’s child’s school is closed from Monday to Friday and the employee only wants to take Tuesdays and Thursdays off, this would be considered intermittent leave and as such would require employer approval. They said the same would apply for smaller increments of time.

Exempt Healthcare Workers

  • DOL’s Original Rule: A health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. It also includes anyone employed by an entity that contracts with any of these institutions to provide services or to maintain that entity’s operations.
  • The Court: The court struck the DOL’s definition saying that it was too broad in relying on the hiring entity’s identity instead of looking at the skills, role, duties, and capabilities of a class of employees. While the court failed to provide a new definition, it appears that only employees who actually provide direct healthcare services would be considered exempt.
  • DOL’s Updated Rule: The DOL revised its definition of healthcare providers that can be exempt from FFCRA putting the focus on the employee’s role vs. the role of the employer entity. They clarified that healthcare providers include physicians and other individuals who provide diagnostic, preventive, treatment, and other patient services that are integrated with and necessary to the provision of patient care. The DOL further encourages employers to be judicious when deciding to exempt these individuals and consider possibly exempting only for reasons that involve caring for another but still allowing for FFCRA if needed due to the person’s own health status.

 

Employers should take measures immediately to abide by this new ruling, in particular with regards to providing notice of eligibility for any employees that were previously believed to be exempt but who would now qualify for FFCRA.

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