September 23, 2020

Volume X, Number 267

September 23, 2020

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DOL Issues Revised FFCRA Regulations in Response to Court Ruling

On Sept. 11, 2020, the U.S. Department of Labor (DOL) announced revisions to the regulations implementing the Families First Coronavirus Response Act (FFCRA), following the New York federal court’s decision that invalidated some of the prior regulations as either inconsistent with the text of the FFCRA or insufficiently explained by the DOL in its original regulations.

In response to this decision, the DOL reaffirmed and revised certain provisions of the regulations, which will be published formally on Sept. 16, 2020 and will remain in effect until Dec. 31, 2020. The most significant change is with respect to the definition of health care provider. The DOL’s revisions of the regulations provide the following:

  • Reaffirms FFCRA leave may not be taken if the employer does not have work for the employee to perform. The rule also clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.

  • Reaffirms an employee must obtain the employer’s approval to take emergency paid sick leave or expanded family and medical leave intermittently.

  • Revises the FFCRA’s documentation requirements to clarify an employee must provide documents to support the need for FFCRA leave as soon as practicable.

  • Revises the definition of “health care provider” under the FFCRA, which previously included anyone employed at hospitals, medical schools, or other places “where medical services are provided” to mean employees who are considered health care providers under the Family and Medical Leave Act or who are employed to provide diagnostic services, preventive services, treatment services, or other services integrated with and necessary to the provision of patient care.

  • Revises the requirement an employee needs to provide notice of a need to take expanded family and medical leave as soon as practicable.

The DOL revisions provide employers with clarity as to the DOL’s position on how employers should comply with the FFCRA to provide leave to their workforces. The DOL revisions are significant, particularly for health care employers who previously relied on the broad definition of “health care provider” to exempt their employees from leave under the FFCRA. Health care employers should carefully review their positions to determine who may now be eligible for leave under the FFCRA.  All employers covered by the FFCRA should review their current policies and procedures to ensure compliance with the new DOL revisions.


© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume X, Number 260


About this Author

Jessica E. Chang, Attorney, Dinsmore, Chicago, Labor Employment

Jessica focuses her practice on various labor and employment issues that arise in the workplace. She counsels human resources personnel and company representatives on day-to-day employment matters, including hiring, termination, discipline, reasonable accommodation, restrictive covenants, leave, discrimination, and wage and hour compliance. She also counsels HR personnel and companies on developing and implementing employment-related policies and programs in compliance with new laws and regulations.

Faith Whittaker, Dinsmore Law Firm, Cincinnati, Labor and Employment Law Attorney

A partner in the Employment, Labor and Benefits Department, Faith has experience guiding clients through issues that arise in the workplace. She handles employment-related litigation for her clients, who range from local businesses to Fortune 500 companies.

Understanding each client has different tolerances and objectives in dealing with employment matters, Faith is passionate about learning her client’s industry and gaining insight into their operations. While always prepared to vigorously proceed through litigation, she teams with her clients to conduct a thorough evaluation of the case, examining the risks and options before crafting a unique strategy that meets their needs. She works with in-house counsel and legal departments, as well human resources officials and company executives, in analyzing each matter and charting the best course toward a resolution. Faith handles litigation relating to all facets of employment law, including, but not limited to, discrimination claims, retaliation claims, wrongful discharge claims, class and collective actions, claims relating to background checks, wage and hour claims, noncompetition issues, and common law tort claims. She also handles wage/hour and exemption issues for clients and has extensive experience in negotiating settlements.