A recent court order invalidated several sections of the Department of Labor (DOL) temporary regulations of the Families First Coronavirus Response Act (FFCRA). In response, revised regulations and FAQs have been issued which make several important changes clarifying workers’ rights and employers’ responsibilities under the paid sick and family leave rules.
The revised regulations are effective September 16, 2020 and are set to expire along with the FFCRA’s paid leave provisions on December 31, 2020.
Work Availability Requirement
The regulations clarify the requirement that an employee may only take FFCRA leave if an employer has work for the employee, but the employee cannot work due to a COVID-19-related qualifying reason. If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave (for example, the employer has temporarily or permanently closed the worksite or has had a reduction in force), the employee “would have no work from which to take leave.”
Employer Approval of Intermittent Leave
An employee must obtain employer approval for intermittent FFCRA leave in order to avoid unduly disrupting the employer’s operations. This requirement was affirmed; however, the new regulations also outline the difference between intermittent leave and separate, consecutive requests for leave. Intermittent leave is taken in separate blocks, but is due to a single qualifying reason. Separate, consecutive requests for leave occurs when leave (on non-consecutive days) is taken due to separate qualifying reasons. This is best illustrated in the example provided in the guidance: An employee requesting leave to care for a child whose school is closed on alternate days would not be considered intermittent leave (which would require employer approval). The reasoning outlines that each day of school closure constitutes a separate reason for FFCRA leave that ends when the school re-opens again on the next day.
Definition of Healthcare Provider
The definition of “healthcare provider” for purposes of identifying employees who may be denied FFCRA leave was revised. The new definition includes employees who provide diagnostic, preventive, or treatment services, or services that are integrated with and necessary to providing patient care which, if not provided, would adversely impact patient care. The definition excludes information technology professionals, maintenance staff, human resources personnel, cooks and food service workers, records managers, consultants, and billing personnel that may work at a healthcare facility.
Notice and Documentation Requirements
Employees need not give notice or provide required documentation prior to taking FFCRA leave, but rather as soon as practicable. However, if the need for leave is foreseeable, in most cases, it is reasonable to require employees to provide notice (and accompanying documentation) prior to taking leave.