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DOL Responds to District Court’s Decision Invalidating Portions of FFCRA’s Regulations with Updated Temporary Rule

On Friday, September 11, 2020, the Department of Labor (DOL) responded to the U.S. District Court for the Southern District of New York August 3, 2020 decision invalidating portions of the regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).

The DOL examined the Court’s decision and, as a result, reevaluated the portions of the April 1 temporary rule and issued “revisions and clarifications to the temporary rule.” Based on the Court’s decision, invalidating four aspects of the temporary rule, the update rule revised the following:

  • Work-Availability Requirement: The DOL reaffirmed that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. This applies to all qualifying events under the FFCRA.
  • Intermittent Leave: The DOL reaffirmed and provided additional explanation that where intermittent leave is permitted by the regulations, employees must have employer approval to take the FFCRA leave intermittently. The DOL explained that this is consistent with longstanding FMLA principals governing intermittent leave.
  • “Health Care Provider” Definition: The DOL revised the definition of “health care provider” and narrowed its scope from the April 1 temporary rule. The revised definition includes only employees who meet the definition of that term under the Family and Medical Leave Act (FMLA) 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.
  • Notice: The DOL clarified that the information employees must give their employer to support their leave should be provided to the employer as soon as practicable and revised an inconsistency regarding when employees may be required to give notice of expanded family and medical leave to their employer.

The revised rule is effective September 16, 2020, through December 31, 2020.

Employers should review these revisions and update their FFCRA leave policies accordingly. Employers of health care providers that choose to optionally exclude those “health care providers” from FFCRA leave should carefully review the updated definition and may want to consult with legal counsel prior to denying a request for FFCRA leave. Employers should review and revise FFCRA leave policies to require employees to provide notice and documentation supporting FFCRA leave as soon as practicable.

For more information on how to manage your workforce in the wake of the COVID-19 pandemic, visit our OneDigital Coronavirus Advisory Hub, or reach out to your local OneDigital advisory team.

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