On September 11, the U.S. Department of Labor (DOL) issued a new temporary rule interpreting the Families First Coronavirus Response Act (FFCRA), which revised and clarified several parts of its prior rule that were recently struck down by a New York federal court.

On August 3, the U.S. District Court for the Southern District of New York ruled that four parts of the DOL’s temporary FFCRA rule were invalid:

  • The requirement that FFCRA leave is only available if an employee has work from which to take leave.
  • The requirement that an employee may only take FFCRA leave intermittently with employer approval.
  • The definition of an employee who is a “health care provider” and can thus be excluded from FFCRA eligibility.
  • The statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

New York v. U.S. Dep’t of Labor, No. 20-CV-3020, 2020 U.S. Dist. LEXIS 137116 (S.D.N.Y. Aug. 3, 2020).

In response to the decision, the DOL issued a new temporary rule (Rule) that “reaffirms its regulations in part, revises its regulations in part, and further explains its positions.” Because the court had invalidated certain portions of the temporary rule based on a lack of explanation, the DOL reaffirmed certain provisions and provided the underlying explanation. Specifically, the Rule:

  • Reaffirms that FFCRA leave may not be taken if the employer does not otherwise have work for the employee to perform and provides an explanation for this requirement.
  • Reaffirms that employees must obtain employer approval to take FFCRA leave intermittently and provides an explanation for this requirement.
  • Amends the FFCRA’s documentation requirements to clarify that the information an employee must give his or her employer to support the need for FFCRA leave need not be given to the employer “prior to” taking leave, but rather should provide such documentation as soon as practicable.
  • Revises the definition of “health care provider” under the FFCRA, which previously included anyone employed at hospitals, medical schools or other places “where medical services are provided, to mean employees who are considered health care providers under the Family and Medical Leave Act or who are employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care.

It remains to be seen whether the Rule will also face legal challenges and whether the FFCRA’s regulations could be subject to additional changes. At this time, however, the Rule eliminates the uncertainty created by the August 3 court decision and provides employers with clarity as to the DOL’s position on how employers should comply with the FFCRA to provide leave to their workforces.

The Rule goes into effect on September 16 and will remain in place until December 31, 2020.