Last Friday, the Department of Labor (DOL) issued revised FFCRA regulations that will be formally published on September 16. The unpublished version is available here. These regulations were issued in response to an August 2020 ruling by a federal court in New York that invalidated some of the prior regulations as either inconsistent with the text of the FFCRA, or insufficiently explained by the DOL in its original regulations. According to the DOL’s press release accompanying the revised regulations, the revisions do the following:
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
These are the specific regulations that are revised:
29 CFR 826.20: This regulation sets forth the qualifying reasons that FFCRA may be used. The DOL revised the regulation to make clear, for every qualifying reason, that leave may not be used unless the employer has work available for the employee to perform, but the employee cannot work due to the COVID qualifying reason.
29 CFR 826.30: This regulation is the one that explains that employers can exempt “health care providers” from FFCRA leave in certain circumstances. The revised regulations change the definition of “health care provider” in response to criticism that the prior definition was too broad and a court order invalidating it. The revised regulation states that a health care provider is (1) anyone deemed a healthcare provider under the FMLA, or (2) any employee who is capable of providing health services, meaning he or she is employed to provide diagnostic services, treatment services, or other services that are integrated with and necessary for the provision of patient care. The revised regulations include specific examples of the types of employees who qualify as health care providers, and those who do not. Any employer exempting health care provider employees from the FFCRA’s paid leave provisions should review the revised regulation to assess whether their employees still qualify for exemption.
29 CFR 826.90: This regulation describes the notice that employees must provide of the need to use paid sick leave in order to qualify. The revised regulation clarifies that advance notice may not be required for use of emergency paid sick leave and that notice may only be required after the first workday or portion thereof for which the employee uses paid sick leave. After the first workday, notice should be provided as soon as practicable and may be provided by an employee’s family member or other spokesperson if the employee is unavailable. For leave due to school closures, notice should be provided as soon as practicable. If the closure is foreseeable, prior notice should be provided in advance of the need for leave.
29 CFR 826.100: This regulation relates to the timing of documentation substantiating the need for FFCRA leave. Consistent with the revisions to section 826.90, this revised regulation clarifies that documentation should be provided as soon as practicable (generally at the same time as the employee’s notice of the need for leave, described in 826.90).
Employers covered by the FFCRA should review their policies and practices to ensure they are in compliance with the revised regulations.