Employers May Need To Revise Their FFCRA Policies

Oops, they did it again.

Responding to an August 3 Order invalidating certain regulations from a case filed in the U.S. District Court for the Southern District of New York, on September 11, 2020, the U.S. Department of Labor (“DOL”) issued a temporary rule reaffirming and revising some of its regulations interpreting the Families First Coronavirus Response Act (“FFCRA”).

If you need a refresher on the obligations FFCRA imposes upon employers and employees’ rights under FFCRA, you can read that here.

The DOL’s temporary rule addresses the following:

• Work availability: reaffirmed that leave under the FFCRA may only be taken if the employee has work available from which to take leave;

• Intermittent leave: employees still must receive employer approval to take FFCRA leave on an intermittent basis. DOL also distinguished between intermittent and consecutive leave.

• Definition of “health care provider”: DOL narrowed the definition of “health care provider” based on the services provided by the employees in questions. DOL explained that employees that provide diagnostic services, preventive services, treatment services, or other services that are “integrated with and necessary to the provision of patient care” would come within this definition.

• Notice and Documentation: DOL explained that the information the employee gives the employer to support the need for leave should be given “as soon as practicable.” It also corrected an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave.

Instead of expounding on this here or penning a client alert, my law partner Eric Meyer and I took to YouTube to tell employers everything they need to know about the temporary rule. You can watch us here.