On September 11, 2020, the U.S. Department of Labor (DOL) issued revised FFCRA regulations that clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, specifically the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

The primary impetus for the revisions to the FFCRA regulations was to provide clarity following the August 3, 2020, decision of the U.S. District Court for the Southern District of New York, which invalidated four different portions of the FFCRA regulations.

The revised FFCRA regulations, which take effect September 16, 2020, do the following:

1. Reaffirm the requirement that an employee is not eligible for paid leave under the EPSL and/or the EFMLEA if his/her employer has no work available for the employee to perform, even if the employee is otherwise qualified for paid leave under FFCRA.

  • The DOL affirmed that for an employee to be eligible for paid leave under the EPSL and/or EFMLEA, his/her employer must actually have work available for the employee to perform at the time paid leave is requested.
  • Thus, if there is no work available for the employee to perform due to circumstances other than a qualifying reason for leave (DOL uses as an example, “perhaps the employer closed the worksite temporarily or permanently”), the FFCRA qualifying reason could not be, and is not, the reason for the employee’s inability to work.
  • The DOL clarified that the “work availability” requirement applies to all six qualifying reasons under the EPSL and EFMLEA.

2. Reaffirm the requirement that an employee must have employer approval to take intermittent FFCRA leave.

  • As it relates to the school leave issues employers have been facing, the DOL explained, “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 leave.”
  • The DOL used the example of a parent who needs to take leave due to his/her child’s school being closed on Monday, Wednesday and Friday of one week, and Tuesday and Thursday of the following week. According to the DOL, “For purposes of FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day,” thus it is not intermittent leave. Therefore, under the above alternate day/hybrid attendance scenario, if the employee is eligible for paid leave under the EPSL and/or EFMLEA, leave should be granted.
  • The DOL distinguished the above scenario from an alternative scenario when a child’s school is closed for a continuous and extended period of time (e.g. two months), and the employee wishes to take leave only on certain days. The DOL explained that this would constitute intermittent leave and require employer consent for the employee to be granted paid leave, even if the employee is otherwise eligible.
  • a parent learns that his or her child’s school will be closed Tuesday, after already reporting to work on Tuesday.

3. Revise the definition of a “health care provider” who may be excluded by their employer from EPSL and EFMLEA to include employees who meet the definition of a health care provider under the FMLA regulations, and those individuals 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 DOL adopted the FMLA’s definition of a “health care provider” (e.g. physicians and others who make medical diagnoses);
  • The DOL also expanded the definition of a “health care provider” to include an individual who is “capable of providing healthcare services.” According to the DOL, a “health care provider” 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, and that if not provided would adversely impact patient care.” The DOL explained that for purposes of this health care provider definition, the focus should be on the individual’s duties and responsibilities, “even if not performed by individuals with a license, registration, or certification.”
  • The DOL determined that an individual is “capable” of providing health care services “if he or she is employed to provide those services … the fact that the employee is paid to perform the services in question is, in this context, conclusive of the employee’s capability.”
  • The DOL identified three categories of individuals who may qualify as health care providers (and who may therefore be denied leave under the EPSL and EFMLEA):
    1. Nurses, nurse technicians, medical technicians, and others who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care;
    2. Employees who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision of a doctor, nurse, nurse technicians, or medical technicians.
    3. Employees who may not directly interact with patients, and/or who may not report to another health care provider or directly assist another health care provider, but “nonetheless provide services that are integrated with and necessary components to the provision of health care.” One example provided is a lab technician who processes test results.
  • The DOL explained that individuals who provide services that affect, but are not integrated into the provision of patient care, are not covered under the definition of “health care provider,” e.g., IT professionals, building maintenance staff, human resources personnel, food service workers, managers, consultants, and billers.

4. Clarify that employees must provide their employers with the required documentation (e.g. name, date(s) for leave, qualifying reason for leave, oral statement that employee is unable to work or telework, and any other supporting documentation such as quarantine or isolation order, doctor’s note advising employee to self-quarantine, school or place of care closure letter, etc.) supporting their need for EPSL and/or EFMLEA leave “as soon as practicable.”

  • The DOL stated that the previous requirement that an employee must provide their employers with the required documentation “prior to” taking paid leave will be removed.
  • Under the revised FFCRA regulations, employees requesting paid leave under the EPSL and/or EFMLEA must provide their employers with the required documentation, “as soon as practicable.” According to the DOL, in most cases this will be when the employee provides notice to his/her employer of the need for leave.

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.

  • FFCRA regulations will now state that when the need for leave under the EFMLEA is “foreseeable,” advance notice is to be provided to the employer “as soon as practicable.”
  • The DOL uses the example of a parent learning on Monday that his or her child’s school will be closed on Tuesday for a COVID-19 related reason. Under this scenario, the DOL instructs that the “employee must notify his or her employer as soon as practicable [likely Monday at work].”
  • Alternatively, when need for leave under the EFMLEA is not foreseeable, “the employee may begin to take leave without giving prior notice, but must still give notice as soon as practicable” (i.e. that same day). For example, this would apply when a parent learns that his or her child’s school will be closed Tuesday, after already reporting to work on Tuesday.