Following a decision from a federal court in New York vacating portions of the Families First Coronavirus Response Act (“FFCRA”) regulations, the Department of Labor (“DOL”) recently published revised regulations addressing the court’s decision.
Notably, the revisions establish a new definition for a “health care provider” after the New York court found the previous definition to be overly broad. The revised regulations define a health care provider the same as the Family and Medical Leave Act (“FMLA”), which is (i) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery; or (ii) any other person determined to be capable of providing health care services.
The revisions also amended other portions of the regulations. Previously, the regulations directed employers to obtain required FFCRA leave documentation from employees prior to taking leave. Now, the regulations clarify that employees can submit this documentation to employers as soon as practicable. Additionally, the revisions state that an employee seeking expanded family and medical leave (“EFMLA”) under the FFCRA should notify their employer as soon as practicable, when before, the regulations did not address the timeframe in which employees needed to notify employers of their need for leave.
Despite being directed to do so by the federal court, the revisions did not amend portions of the regulations which limit FFCRA leave to employees who have work otherwise be available to them, and that require an employer’s approval to take FFCRA leave intermittently. However, the DOL provided additional explanations for these regulations should they be challenged again.
Furthermore, the DOL addressed employee requests for intermittent EFMLA when the employee’s child is enrolled in a school with an alternate date or other hybrid-attendance program. The DOL stated that “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” As a result, the DOL states, intermittent leave is not needed for employees whose children are enrolled in such a program. Rather, intermittent leave would apply in a situation where the school or daycare is closed for a period of time, and the employee only seeks leave for “certain portions of that period for reasons other than that school’s in-person instruction schedule.” That being said, the regulations still require employer approval for intermittent leave.
The revised regulations go into effect on September 16, 2020.
Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19. If you have any questions, please contact us.
This update is provided for informational purposes only and should not be considered legal advice.