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September 14 2020

Updated DOL Regulations on the FFCRA

By: Nikole L. Canute and Regina M. Gilmour

Last week, the Department of Labor (“DOL”) issued revised regulations regarding the Families First Coronavirus Response Act (“FFCRA”); the initial regulations were issued on April 1, 2020.  The DOL issued its revised regulations in response to an August 3, 2020 decision out of the U.S. District Court for the Southern District of New York, which found portions of the DOL’s prior regulations to be invalid.  The revised regulations take effect on September 16, 2020 and can be read in full here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-20351.pdf

The Revisions

The DOL revised the previous regulations by:

  • §  Reaffirming its stance that employees may take FFCRA leave only if work would be otherwise available; also explaining that the available work requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
  • §  Reaffirming its stance that employees are required to have employer approval to take FFCRA leave intermittently and further explaining the rationale behind its stance. 
  • §  Revising the definition of “healthcare provider” to focus on the roles and duties of employees, rather than their employer.  The revised definition includes only those employees who meet the definition of “healthcare provider” under the Family and Medical Leave Act or individuals “employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”
  • §  Revising § 826.100 and § 826.90 to clarify that an employee must inform the employer of his or her need for FFCRA leave as soon as practicable.

If you have any questions regarding any of the DOL’s revised regulations or you need assistance responding to requests for leave under the FFCRA, contact Nikole Canute, Scott Dwyer, or Nate Wolf for assistance.