United States Department of Labor Amends FFCRA Regulations Effective September 16, 2020

We have posted repeatedly about the Families First Coronavirus Response Act (“FFCRA”), 3/17, 3/19, 3/27, 4/6, 8/10 and 9/3, which was enacted on April 1, 2020 to provide certain employees with leave and benefits necessitated by COVID-19.  Effective September 16, 2020, the United States Department of Labor (“DOL”) issued revised regulations under the FFCRA.

As discussed in our August 10, 2020 blog, on August 3, 2020, the Southern District of New York (J. Paul Oetken, DJ) criticized and vacated four (4) parts of the law.

In response, the DOL has issued revised regulations (the “Revised Rule”) to modify and clarify any previous inconsistencies highlighted by the court.  The Revised Rule includes the following material changes:

1. In the Revised Rule, the DOL confirmed that work must be available to the employee in order for the employee to be eligible for FFCRA leave.
2. The DOL confirmed that employees must receive approval from the employer in order to take intermittent leave.
3. Significantly, the DOL narrowed the definition of “health care provider” (those employees who can be excluded from taking FFCRA leave) to “those employees that are health care providers under the FMLA’s implementing regulations, 29 CFR 825.102 and 825.125.  Under the Revised Rule, it “is not enough that an employee works for an entity that provides health care services.”
4.  In order to fix a discrepancy between the language of the statute and the regulations, the DOL clarified that notice of the need for paid sick leave and expanded family and medical leave shall be provided “as soon as practicable.”  Therefore, employees are not necessarily required to request FFCRA leave before leave begins.

Employers should immediately review their policies and practices to ensure compliance with the Revised Rule.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.