DOL Issues New FFCRA Rule in Response to US District Court in NY

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Hirschfeld Kraemer LLPEmployers have had a hard time ensuring that their employees remain safe amid a global pandemic and that their respective enterprises continue to operate, whether by providing services or creating goods for sale. The Families First Coronavirus Response Act (FFCRA) was intended to assist employees by providing paid time off in defined situations. However, the pages and pages of FAQs and regulations interpreting the FFCRA were sometimes difficult to apply, especially when the answers changed over time.

Then the U.S. District Court for the Southern District of New York made it even more challenging by issuing an opinion that invalidated certain aspects of the Department of Labor (DOL) regulations interpreting the FFCRA. Employers, including their employment attorneys and human resources professionals, have been concerned about the reach of that one federal court opinion, and wondered to what extent they could rely on the rules of the DOL that are intended to assist in navigating an important legislative response to COVID. After the New York federal court decision, the DOL indicated that it would provide some clarity.

On September 11, 2020, the DOL issued a new rule seeking to reaffirm, clarify, or revise aspects of the original rule that the New York federal court found objectionable.

Effective September 16, 2020, the DOL’s new FFCRA rule has four major points:

1.  Reaffirms that an employee can take leave under the FFCRA only if the employee’s work is unavailable to them due to an FFCRA defined reason. The court found the original rule to be internally inconsistent and lacking in justification. The new rule addresses those concerns.

2.  Reaffirms that an employee must obtain the employer’s approval to take FFCRA leave intermittently. The new rule again explains the DOL’s justification for giving the employer control of whether to accept an intermittent request.

3.  Revises the definition of a “health care provider.” Under the original rule, any employee of a health care provider could have been excluded from the requirements of the FFCRA, but the court found the original rule to be too broad. The new rule now defines a “health care provider” to include those who meet the definition under the Family Medical Leave Act or who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. For example, the original rule included all employees at a health care organization, including an information technology professional or faculty member teaching a medical school course at a medical center. The revised definition focuses on employees directly providing health care services and those closely integrated, such as a laboratory technician doing a blood test.

4.  Revises the rule to state that an employee should provide documentation supporting a leave under FFCRA as soon as practical. The court had criticized the original rule when it required the provision of documentation before the leave is taken, which would not have been possible in some instances. The revised rule now recognizes that the “as soon as practical” standard is more appropriate.

We expect the DOL to continue to assess whether to further refine its FFCRA FAQs and regulations, especially if there are future court decision challenging the validity of the DOL’s guidance. As of right now, the FFCRA and its implementing rules are effective through December 31, 2020.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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