September 16, 2020

By Attorneys Danielle Haindfield and Carrie Weber

The Families First Coronavirus Response Act ("FFCRA") is scheduled to remain in effect until December 31, 2020. The FFCRA provides additional paid leave for employees under certain qualifying conditions such as a quarantine order, diagnosis of COVID-19, or to care for a child whose school is closed due to the pandemic.

On September 11, the U.S. Department of Labor ("DOL") issued revisions and clarifications to its existing regulations that interpret and apply the FFCRA. This action was in response to an August federal court decision out of the Southern District of New York that invalidated parts of the existing regulations. The revisions will be effective September 16, 2020.

The court decision and subsequent DOL adjustments affect four areas of the regulations:

(1) The work availability requirement: The DOL regulations continue to require that an employer have "work available" for an employee to be eligible for FFCRA leave. Accordingly, employees who are furloughed or laid off are not eligible. The DOL emphasized that employers cannot withhold work simply to impede an employee's ability to take leave - the unavailability of work must be due to legitimate, nondiscriminatory, nonretaliatory business reasons.

(2) Intermittent Leave: Employees must still get permission from their employer to take intermittent leave under the FFCRA. Specifically, DOL noted that it was attempting to "balance the employee's need for leave with the employer's interest in avoiding disruptions by requiring agreement by the employer for the employer to take intermittent leave." Importantly however, the preamble to the new regulations specifically addresses the common situation in which an employee's child participates in hybrid learning. For example, the child might only attend in-person school Tuesday/Thursday and be home Monday/Wednesday/Friday. The DOL concluded that each day of school closure "constitutes a separate reason for FFCRA leave that ends when the school opens the next day." Accordingly, employees are entitled to leave consistent with their child's hybrid school schedule, and do not need employer consent. This leave is not considered "intermittent" because it is due to the school's hybrid schedule and not the employee's choice. If, however, a school is closed and doing virtual learning, and the employee indicates a need to be home with his/her child only some of the days because the employee has daycare the other days, then the employee's use of leave on those specified days would require employer consent and be considered "intermittent leave." These leave days are intermittent because they are at the election of the employee and not directed by the school's schedule.

(3) Documentation and Notice Requirements: Employees are not required to provide necessary documentation prior to taking applicable leave. Instead, documentation must be provided "as soon as practicable, which in most cases will be when the employee provides notice of" the need for leave. The DOL noted that if the leave is foreseeable, the employee should generally provide notice before taking leave. However, the DOL has reiterated that some leave is not foreseeable.

(4) Definition of "health care provider": The DOL has significantly narrowed the definition of "health care provider" to include only employees who: (1) meet the definition of "health care provider" under existing FMLA regulations; or (2) are "employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care." Health care providers are not entitled to FFCRA leave. Under the revised DOL regulations, health care providers include nurses or employees providing diagnostic, preventative, treatment, or other services "under the supervision, order, or direction of, or providing direct assistance to" a health care provider.

Detailed information regarding the updates to the DOL's regulations is available here.

The DOL's updated FAQ concerning the FFCRA is available here.

If you have any questions about these changes or the application of the FFCRA generally, feel free to contact one of our Employment Law Practice Group attorneys.


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Haindfield, Danielle


Weber, Carrie


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