The U.S. Department of Labor’s Wage and Hour Division (WHD) provided clarifications to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).
The revisions, effective September 16, 2020, clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the U.S. District Court for the Southern District of New York in an August 3, 2020, decision that found portions of the regulations invalid. The Department of Labor (DOL) said it carefully examined the court’s opinion and reevaluated the portions that the court ruled invalid. In doing so, it reaffirmed and further explained its position.
The revisions are as follows:
- Reaffirmed and provided additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirmed and provided additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
- Included an “exception" example related to employer approval to take FFCRA leave when the child’s school, place of care or childcare provider is closed on alternating days, for example on Monday, Wednesday, and Friday. The DOL explained how that particular situation is not considered “intermittent” as the leave being requested is for single, full-day increments and therefore would not need employer approval. However, the employee would still need to provide notice and documentation as soon as practicable.
- Revised the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or 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. A person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital of a similar health care facility.
- Clarified that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
Next Steps for Employers
Employers should review their FFCRA policy to ensure it allows for employees to provide documentation as soon as practicable, along with reviewing the revised healthcare provider definition and applying that exemption appropriately. The DOL updated its FAQs, and MRA FAQs and sample FFCRA policy have also been updated to reflect these revisions.
Source: DOL.gov press release (9/11/20); Lynell Meeth, Director, HR and Content Strategy, MRA – The Management Association