A recent court decision has prompted the Department of Labor to issue revisions to regulations implementing the paid leave provisions of the Families First Coronavirus Response Act. The changes are effective Wednesday, September 16, 2020 when published in the Federal Register. (The “unpublished” version is available here.)
In April, when the Department of Labor first issued FFCRA regulations, the State of New York challenged certain parts of those regulations in court. Last month, the U.S. District Court for the Southern District of New York sided with the State of New York and held that several portions of the regulations are invalid because, among other reasons, the DOL did not sufficiently explain its rationale for certain requirements (State of New York v. United States Department of Labor, et al., S.D.N.Y. No. 20-CV-3020, J. Oetken, Aug. 2, 2020).
As a result, the DOL issued revised regulations “to reaffirm its regulations in part, revise its regulations in part, and further explain its positions.” Mostly, though, the DOL reaffirmed and explained. Here’s a quick rundown:
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The DOL reaffirmed that emergency leave (expanded FMLA or sick leave) may be taken “only if the employee has work from which to take leave.”
Over the course of almost nine pages of preamble text, the DOL explained why the qualifying reason for the leave “must be the actual reason the employee is unable to work” (the so-called “work-availability requirement”). In other words, an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform. -
The DOL reaffirmed that “employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent FFCRA leave is permitted.”
The DOL emphasized that employer approval is appropriate in the context of FFCRA intermittent leave taken for qualifying reasons that “do not exacerbate risk of COVID-19 contagion,” as well as for FFCRA leave taken intermittently to care for a child. -
The DOL revised the definition of “health care provider” for purposes of an employer’s optional exclusion of employees who are health care providers from FFCRA leave.
The revised definition focuses on employee duties and roles, and provides examples of employees who are not health care providers (IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers). - The DOL revised the notice and documentation requirements to clarify that required documentation need not be given “prior to” taking paid leave, but rather may be given as soon as practicable, which in most cases will be when an employee provides notice.
So, the DOL is mostly sticking to its guns. Will these changes have much of an impact on FFCRA’s remaining three-month lifespan? As with all things COVID – only time will tell.
*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, is a member of the firm’s Labor and Employment Groups and regularly advises clients on all employment related matters. If you have questions, please contact Helena at hot@zrlaw.com or (216) 696-4441.