DOL Revises FFCRA Leave Rules

Author: Robert S. Teachout, XpertHR Legal Editor

September 15, 2020

The US Department of Labor (DOL) issued revised rules on leave under the Families First Coronavirus Response Act (FFCRA) in response to a ruling by a federal district court in New York that struck down four provisions of the agency's earlier FFCRA leave regulations. The DOL addressed some of the court's concerns but held firm on its positions for others, instead providing additional information to explain and support its reasoning.

The court had held that the DOL exceeded its authority to interpret the FFCRA in the rules regarding:

  • The definition of health care provider;
  • Employee documentation requirements;
  • The work-availability requirement; and
  • Restrictions on the use of intermittent leave.

The DOL has narrowed the definition of "health care provider" from the original regulation, which the court found overly broad, to now cover employees who are health care providers under the Family and Medical Leave Act. In addition, employees who provide diagnostic, treatment or preventive services, or other services that are integrated with and necessary to the provision of patient care are also included.

The DOL also clarified when an employee is obligated to provide documentation showing that they need to take FFCRA leave. Specifically, an employee no longer must provide documentation before taking leave, and may instead give it "as soon as practicable." The earlier rule was inconsistent with the FFCRA's unambiguous notice provisions, the court had said.

However, the DOL reiterated its rule that there must be work available in order for the employee to be eligible to take FFCRA leave. It supported its position stating, "leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave."

The holding falls in line with the DOL's position that an employee does not use FMLA leave for time that the employee would not be scheduled to work. The DOL warned, however, that employers may not arbitrarily withhold work in order to prevent an employee from taking FFCRA leave.

The agency also held firm on its stance that an employee have the employer's consent to take intermittent leave. The DOL stated that the employee's need for leave should be balanced with the employer's interest in avoiding work disruptions.

It also noted that the reasons permitted for leave under the FFCRA differ from those under FMLA, such as for childcare or schooling, Therefore, the meaning of "intermittent" and how it might be applied will be different from what employers have understood in the past.

For example, when a school is open only on certain days and virtual on others, an employee would use leave only on the virtual class days. The use of a full day of FFCRA leave to meet such needs would not be intermittent, the DOL reasoned, because the school itself is opening and closing on different days, each constituting a new "event" under the law.

The revised rules are scheduled to be published in the Federal Register on September 16, 2020, and will take effect the same day. The DOL has also updated and added to its FFCRA FAQs to reflect the revised regulations.