On September 11th, the U.S. Department of Labor issued revised regulations on the Families First Coronavirus Response Act (FFCRA). The new regulations are a response to an August 3, 2020 decision from a New York federal court finding that DOL’s interpretation of the FFCRA excluded too many health care workers from the Act’s coverage. The court also struck down a provision that allows employers to deny leave when they don’t have work available, as well as provisions that require workers to provide documentation before taking leave and seek management approval before taking intermittent leave.
In its revised regulations, DOL essentially “doubled down” on most of its prior position. Specifically, the revised rule provides:
- employees may take Emergency Paid Sick Leave or Emergency Family and Medical Leave only when work is actually available to them;
- employees must have their employer’s approval to take intermittent FFCRA leave; and
- employees must provide employers with documentation as soon as possible supporting their need for FFCRA leave.
The one area where DOL did make changes is in the definition of a “health care provider” who may be excluded from the use of FFCRA leave. The new definition provides that “health care provider” includes “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.” While this definition is not as expansive as that in the original regulations (which excluded from the FFCRA essentially anyone working for a health care employer), it is still much broader than the “classic” definition of “health care provider” in the FMLA.
The Agency took note of the perverse results that would follow if, as the New York court held, employees could take FFCRA leave when no work was available to them. In such case, a furloughed employee on FFCRA leave would be better off financially than one not on leave because he or should would be paid while those not on leave would not.
In reaffirming its position that intermittent EFMLA need only be provided with the employer’s consent, the DOL analogized the need for leave to that of “bonding” leave for newborns under the FMLA. The Agency noted that such leave is available under the FMLA only when the employer agrees to it, and decided to take a similar approach under the FFCRA. However, the revised regulations do provide that an employee need not obtain employer approval when FFCRA leave is taken in full day increments to care for a child whose school is operating on an alternate day or other hybrid schedule because such leave is not “intermittent.” Rather, in this instance, each day the school is closed is deemed a separate instance of FFCRA leave.