DOL Issues Revisions to the Families First Coronavirus Response Act - Bim Group

DOL Issues Revisions to the Families First Coronavirus Response Act

( 3 MINUTE READ )

On Friday, September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) 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).  These revisions are scheduled to take effect Wednesday, September 16, 2020.

The FFCRA took effect on April 1, 2020.  Why the change now you may ask?  These revisions were to address a recent decision issued by U.S. District Court for the Southern District of New York on August 3, 2020 in State of New York v. U.S. Dept. of Labor, Case 1:20-cv-03020 (S.D.N.Y. 2020), which found portions of the FFCRA to be invalid.

As stated by the DOL, the revisions do the following:

1. Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.

The Department’s April 1, 2020 rule stated that an employee is entitled to FFCRA leave only if the qualifying reason is a “but-for” cause of the employee’s inability to work. The District Court held that the FFCRA’s use of “because” and “due to” in referring to the reasons an employee is unable to work or telework were ambiguous.   In the revisions, the DOL reaffirmed that an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform.

2. Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.

Under the FMLA, intermittent leave is specifically defined as “leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.” 29 CFR 825.102. However, unlike the FMLA, the FFCRA did not specifically address intermittent leave.  Instead, the DOL, based upon its grant of broad regulatory authority, initially interpreted and now reaffirmed in the recent revisions that employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent FFCRA leave is permitted.

3. 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.

The FFCRA excludes health care providers and emergency responders to prevent disruptions to the health care system’s capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs that may result from health care providers and emergency responders being absent from work.  However, the U.S. District Court for the Southern District of New York vacated the definition of “health care provider”.  The recent amendment limits this term to coverage as  defined in the FMLA or to those “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

4. Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.

Section 826.100 initially stated that an employee is required to provide documentation supporting the leave “prior to” taking paid sick leave or expanded family and medical leave. The District Court, however, held that the requirement that documentation be given “prior to” taking leave “is inconsistent with the statute’s unambiguous notice provision.”  Given this view, the DOL amends § 826.100 to clarify that the required documentation 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.

5. 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.

Finally, the DOL is also revising § 826.90(b) to correct an inconsistency regarding the timing of notice for employees who take expanded family and medical leave.  Previous § 826.90(b) stated, “Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family and Medical Leave.”  The DOL indicated that this statement is correct with respect to paid sick leave but not for expanded family and medical leave.  Thus, the DOL reasoned that advanced notice for expanded family and medical leave “is not prohibited” but “it is in fact typically required if the need for leave is foreseeable.” Revised § 826.90(b) corrects this error by stating that advanced notice of expanded family and medical leave is required as soon as practicable if the need for leave is foreseeable and that will generally result in providing notice before taking leave.

We recommend employers review their policies to ensure consistency with the changes.

Recent Insights

September 26, 2023
HR Elements

Workplace Culture | Salary Transparency in Job Postings

The importance of pay transparency is on the rise as more organizations now include salary ranges in their job postings. Recent research from Payscale indicates a significant increase in employers adopting this practice, with the percentage of job postings featuring pay ranges jumping from 22% to 45% in 2022. Promoting pay transparency is not just […]
Read more
September 25, 2023
Open Enrollment, Webinar

Webinar: Best Practices for a Successful Open Enrollment

Tuesday, October 10, 2023 1 – 2PM CST Register Now Registration Code:UBA410EW Attend this month’s webinar to learn best practices to implement and pitfalls to avoid during this year’s open enrollment period. Gain insights into: The mandatory and optional health plan notices The accepted forms of enrollment communication for in-office and remote employees The irrevocable […]
Read more
September 6, 2023
HR Elements, Wellness

Unlock Your Prime-Time Energy Level: Achieve Optimal Productivity

READ TIME: 5 MINUTES In a world where many things compete for your attention, achieving a productive day can be challenging. Sometimes, working more hours can help you get more done, but it can also make you feel tired and stressed. Everyone only has 24 hours in a day. An essential aspect of enhancing productivity […]
Read more
September 6, 2023
Compliance Alert

August 2023 Compliance Recap

READ TIME: 8 MINUTES In August, the IRS announced a decrease in the ACA affordability percentage to 8.39%. Both Colorado and Illinois expanded their leave laws. The Department of Labor released its updated version of the Premium Assistance Under Medicaid and the Children’s Health Insurance Program (CHIP) Notice. Employers prepared for the possibility of receiving […]
Read more