FFCRA Updates

Late on Friday September 11 via a temporary rule published in the Federal Register, The U.S. Department of Labor (DOL) updated provisions within its final rule implementing the Families First Coronavirus Response Act, in response to an August federal court ruling that struck down aspects of the original rule. These updates take effect September 16.

Among the changes is a revision of DOL’s definition of which healthcare providers an employer may exempt from taking FFCRA leave. The revised definition states that an employee is a health care provider if he or she is ‘capable of providing health care services.’ Such providers must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” Previously employment at a health care services entity was considered a “health care provider,” allowing for custodial or front desk staff to be classified as health care providers.

The rule also addressed other provisions struck down by the court, namely clarifying that employees need not provide the documentation required for taking FFCRA leave before taking the leave. Instead, this documentation “may be given as soon as practicable,”

Per the DOL, 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. The DOL argued that the court’s interpretation would lead to a nonsensical result in which companies who did not have work and which had furloughed employees would have to grant leave to those employees. The DOL noted that both the sick time and family leave are forms of “leave” and that employees who had no work to perform, i.e., were on furlough, do not require “leave,” as that word is commonly understood.

• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently. The new rule clarifies that the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis, because such leave would not be intermittent. In an alternate day or hybrid-attendance schedule, the school is physically closed with respect to certain students on particular days as determined by the school, not the employee. For the purposes of FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day, and thus intermittent leave is not needed because the school literally closes and opens repeatedly.

• Revise the definition of “healthcare 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. Thus, employers may require an employee to furnish as soon as practicable the required information and/or documentation

• 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.

Please know that while we strive for relevant and accurate information, this remains a fluid and evolving situation. We are not lawyers so please understand the information provided here does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.

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