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DOL Revises FFCRA Regulations to Clarify Paid Leave Rules in Wake of NY Federal Court’s Decision

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a federal court’s decision that invalidated a handful of regulatory provisions interpreting the FFCRA.

As background, on August 3, 2020, a federal court in New York struck down four parts of the FFCRA’s final rule: (1) the requirement that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) are available only if an employer has work available for the employee from which leave can be taken (“the work availability requirement”); (2) the requirement that an employee must have employer consent to take FFCRA leave intermittently; (3) the definition of an employee who is a “health care provider,” who an employer may exclude from use of FFCRA leave; and (4) the requirement that employees must provide their employers with certain notice and documentation before taking FFCRA leave (rather than after the leave begins).

In its revised regulations, set to be published and take effect on September 16, 2020, the DOL:

  • Reaffirms that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave, and provides its reasoning why this precondition is critical;

  • Confirms that intermittent leave under FFCRA can only be taken with employer approval;

  • Provides an amended definition of “health care provider” that is narrower than its original regulations to cover employees who are health care providers under the classic Family and Medical Leave Act (FMLA) definition, as well as other employees who are employed to provide diagnostic, preventive, or treatment services, or other services that are integrated with and necessary to the provision of patient care; and

  • Clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation [adding the phrase “as soon as practicable” under the circumstances].

Get a complete analysis, with relevant links, click here to visit Littler’s “FMLA Insights”.

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