September 16, 2020

Regulatory Whiplash! DOL Reissues FFCRA Regulations

As previously reported, on August 3rd a judge ruled that four provisions of the U.S. Department of Labor’s (DOL) Families First Coronavirus Response Act (FFCRA) regulations were invalid.

In response, on September 16th the DOL published a revised rule, which essentially agreed with the judge on two provisions and maintained the DOL’s original position on the other two.

Intermittent Leave. The DOL retains its original rule that an employee may take Emergency Family and Medical Leave Expansion Act (EFMLEA) leave only if the employer agrees. The new rule does clarify, however, what constitutes intermittent leave.  EX: Your employee’s child’s school is open but on an alternate schedule. Your employee’s child is to attend in-person M-W-F of one week and T-TH of the following. Your employees needs to stay home to care for his or her child on each day the child is not in school.  This is not a request for intermittent leave.  As the DOL explains it, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day…intermittent leave is not needed because the school literally closes…and opens repeatedly…”

Work-Availability Requirement. The DOL retains its original position on this issue, too.  An employee who is furloughed or for whom the employer otherwise has not work available for the employee is not eligible for FFCRA leave. The DOL explains, in part, “…the use of the term ‘leave’ in the FFCRA is best understood to require that an employee is absent from work at a time when he or she would otherwise have been working.”

Exemption for certain health care employees. The new rule narrows this exemption and addresses the judge’s concern that a professor working at a university that just happened to be associated with a health care facility could be exempt or ineligible for FFCRA leave.

Notice and documentation. The DOL clarified that while an employee is required to provide his employer with information supporting his or her need for FFCRA leave, the employer may not delay or defer that leave until the employee has produced the information.  The DOL explains that the employee must give reasonable notice in advance, where foreseeable, and produce the required documentation “as soon as practicable.”

On September 23rd, FiveL Company hosted a FREE 90-minute webcast on the new regulations. It is pre-approved by HRCI and SHRM for 1.25 credits (was originally scheduled for 75 minutes). Click here to register and view this FREE webcast.