On September 11, 2020, revisions to the FFCRA (Families First Coronavirus Response Act) were announced by the U.S. DOL (Department of Labor). This comes after a Federal District Court Judge in New York struck down several components of the regulations in August. The modifications provide clarity on when leave is available, when employees are required to seek approval for leave, and further explains the definition of a health care provider. Below is an overview of the new revisions which are effective September 16, 2020:
What Remains the Same:
The DOL affirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. The temporary rule clarifies that this requirement applies to all qualifying reasons to take paid leave under the FFCRA.
The DOL affirms an employee must obtain their employer’s approval to take FFCRA leave intermittently.
What Has Been Revised:
The DOL has revised the definition of “health care provider”. This revision enables employers to exclude some health care workers from leave eligibility if they choose to do so. The revision states “Employees who are health care providers and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” Additionally, the temporary rule further clarifies that an employee is a health care provider if they are “Capable of providing health care services.”
The DOL revised the leave notice requirement to clarify that the information the employee must give the employer to support the need for leave should be provided to the employer as soon as practicable (as soon as possible). Similarly, the DOL revised the rule regarding when an employee may be required to give notice of expanded family and medical leave to their employer. The rule states “Where the necessity for expanded family and medical leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.”