17 Sep

September 2020: Department of Labor Issues Revised Regulations for Families First Coronavirus Response Act

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The Department of Labor (DOL) has posted their new official revised regulations for the Families First Coronavirus Response Act (FFCRA), effective immediately. In addition, the DOL has also updated its Frequently Asked Questions as a result of the update.

After a federal judge in New York struck down portions of the regulations interpreting the FFCRA in August 2020, it became clear that the DOL would need to either challenge the ruling or provide revised regulations. The DOL has since released the unofficial regulations online, on Friday, September 11, 2020 indicating that they will not be challenging the court ruling.

What happened?
The Department of Labor (DOL) has posted their new official revised regulations for the Families First Coronavirus Response Act (FFCRA), effective immediately. In addition, the DOL has also updated its Frequently Asked Questions as a result of the update.

What are the details?
After a federal judge in New York struck down portions of the regulations interpreting the FFCRA in August 2020, it became clear that the DOL would need to either challenge the ruling or provide revised regulations. The DOL has since released the unofficial regulations online, on Friday, September 11, 2020 indicating that they will not be challenging the court ruling.

Generally speaking, the regulations add small changes or corrections and clarify the reasoning behind existing regulations. In total, four areas of the regulations have been changed the most and should require any employer’s attention.

  1. “Health Care Provider” Classification Narrowed
    Previously, the regulation for healthcare providers was very encompassing. The New York court ruled that, indeed, they were over encompassing. In response, the DOL has changed the regulation to be less inclusive. The old regulations could be construed to include everyone working for a healthcare provider, all the way down to HR workers, IT specialists, food service workers (feeding staff), and anyone else considered to support the caregivers. The new regulations will still cover healthcare providers, like physicians, some chiropractors, and nurse practitioners. It will also cover employees who are “employed to provide” diagnostic, preventative, or treatment services, “or other services that are integrated with and necessary to the provision of patient care.” This can be seen to cover nurses, nurse assistants, medical technicians, and laboratory technicians (on a case-by-case basis). Now, administrative staff will not be excluded by the FFCRA. So, HR staff, IT specialists, food service workers (not directly feeding patients) who work for healthcare providers, are now covered by the FFCRA due to the new regulations.
  2. “Work Available” Requirement
    Previously, the FFCRA regulations stated that employee could not use the FFCRA leave in cases where their work would not otherwise be available. Meaning that if the employer would not have had work available for the employee before trying to use their FFCRA provided leave, the employee would not be eligible to use the FFCRA leave. Additionally, the old regulation had only been applied to three of the six reasons that the employee could use their FFCRA leave. The new regulation is now applied to all six reasons that an employee can take FFCRA leave. The DOL provides the following:

    “The Department’s (DOL) regulations thus interpret the FFCRA to require that an employee may take paid sick leave or expanded family and medical leave only to the extent that a qualifying reason for such leave is a but-for cause of his or her inability to work.”

    Meaning that the DOL is sticking to their use of the but-for causation to determine if employees should be able to use their FFCRA paid sick leave. They have only provided clarification and applied the standard to all the reasons that the employees may utilize their FFCRA leaves.
  3. Documentation and Notice of Need for FFCRA Leave
    A minor change was made to the portion of the regulations relating to the employee notice and documentation of the need for FFCRA. The new regulation brings it more in line with the paid sick leave policies that many states and cities are passing. It will not require that employees provide documentation before being allowed to use their FFFCRA leave. Instead, the new regulation will require employees, if the leave is foreseeable, to provide notice to their employers “as soon as practicable” and generally expects that it will be done before the leave begins.
  4. Employer Permission for Intermittent FFCRA Leave
    This regulation functionally stays the same. However, the DOL has provided additional rationale on why:
  • It is allowed to create this regulation; and
  • Why it included the need for the employer’s consent for employees to take “intermittent” leave to care for their child if their school closed.

The DOL determined it is given the right to mandate intermittent leave as the FFCRA statute was silent about intermittent leave but gave broad regulatory authority to the DOL. The DOL rationalized that, in the case of intermittent leave being needed to care for a child (due to school closure) can be balanced against the employer’s need to minimize the disruption to its operations, similar to the Family and Medical Leave Act when the leave is not for a serious health condition. However, the DOL makes an exception for leave needed to care for a child on an alternate-day school schedule. In that case, it is not considered intermittent leave and the employee can take the leave without the employer’s permission.

Links:
A well written article about the regulations can be found here and here.

The official regulations can be found here.

The DOL has updated the FFCRA FAQ to reflect the new regulation, found here. Note: The six (6) questions that have been updated can be found using the “find” function on your browser (typically CTRL + “F”), and entering “Updated to reflect the Department’s revised regulations which are effective as of the date of publication in the Federal Register.”

What do employers need to do?

Employers should review the changes. Healthcare providers should read over the articles to obtain a better understanding of the new regulations and may want to seek legal counsel to help determine which employees will now be eligible for FFCRA leaves

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