DOL Updates FFCRA Regulations, Effective 9/16/2020, In Response To Federal Court Decision

Roetzel & Andress

Last week, the DOL responded with an updated rule, effective September 16th. The rule can be accessed here. The DOL’s updated rule directly addresses the federal courts concerns, modifies the DOL’s prior rule, and makes the following rule determinations:

  1. It re-establishes the DOL prior rule that paid FFCRA leave (both paid sick leave and paid emergency FMLA) can only be taken if the employee has work available from her employer. It cannot be taken if there is no work available (for example, if the employer is shut down).
  2. It responds to the Court’s concerns and limits health care employees exempt from FFCRA protections to those who actually provide diagnostic, preventative treatment services or other patient care. (Thus, employees of a health care entity who do not actually provide health services, such as IT professionals, billers, human resources personnel or records managers will be able to take advantage of FFCRA leave benefits.)
  3. It re-establishes the prior rule requiring employer consent for intermittent FFCRA sick leave or paid emergency leave.
  4. It responds to the Court’s concerns and requires employees submit leave documentation as soon as practicable, but not necessarily before leave is taken (as the original rule required).

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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