“Families First” Rules Continue to Evolve

In response to a recent New York court ruling more favorable to employees, the Department of Labor (DOL) reaffirmed, revised and/or further explained the Families First Coronavirus Response Act (FFCRA)  rules and frequently asked questions. Effective September 16, 2020 the regulations clarify:

• Leave Available Only When Work Available: Any type of FFCRA leave may be taken only if work would otherwise be available. Thus, an employee may not take FFCRA leave if the employer has temporarily or permanently ceased certain operations or is forced to furlough the worker for legitimate business reasons. See, 29 Code of Federal Regulations section 826.20.
• Approval Required for Intermittent Leaves: Employer approval will be needed for taking intermittent FFCRA leave. See, 29 Code of Federal Regulations section 826.50.
• Who is a “Health Care Provider” for Whom Leave May be Unavailable? Although the FFCRA permits “health care providers” to deny FFCRA leave to their employees, the New York court rejected the DOL’s broad inclusion of healthcare workers indirectly involved in health care delivery. The DOL now redefines “healthcare provider” to those who either meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations (i.e., a licensed doctor, nurse practitioner, or other health care provider permitted to issue an FMLA certification); or provide direct diagnostic, preventative or treatment services or other integrated services necessary to the provision of patient care which, if not provided, would adversely impact patient care (e.g., nurses, nurse assistants, and medical/laboratory technicians). See, 29 Code of Federal Regulations section 826.30.
• Who is Not a Health Care Provider? Specifically, a “healthcare provider” does not include IT professionals, building maintenance staff, HR personnel, cooks/food services workers, records managers, consultants and billers, even if they work at a hospital or other health care facility. See, revised DOL FAQ No. 56.

• Required Notice and Documentation to Qualify for Leave: Employees must provide their employers with required notice and documentation substantiating the need for FFCRA leave as soon as practicable. See, 29 Code of Federal Regulations section 826.90.

In its September 11 press release, Wage and Hour Administrator Cheryl Stanton stated, “As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever…. Our continuing robust response to this pandemic balance support for workers and employers alike, and remains our priority.” Thus, employers should review existing policies and procedures to confirm compliance with the revised regulations.

See also:

• Over the Horizon – Broader “Worker-Friendlier” COVID Leave Criteria? (August 21, 2020)
• Paid Sick Leave Going Viral – California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• It’s a Wash – COVID 19 Paid Leave and Tax Credits(April 9, 2020)
• Federal Coronavirus Workplace Relief – New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020(March 23, 2020)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

October 8, 2020