DOL Revises FFCRA Regulations Following Federal Court Decision

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA). These revisions, which are scheduled to take effect on September 16, were released in response to a recent New York federal court decision that struck down elements of the FFCRA final rule, New York v. U.S. Dep't of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020).

New York v. U.S. Dep't of Labor struck down four parts of the FFCRA final rule: (1) the requirement that FFCRA leave is available only if an employer has work available for the employee; (2) the requirement that an employee must gain his or her employer's consent before taking FFCRA leave intermittently; (3) the definition of who may be excluded from FFCRA leave as a "health care provider"; and (4) the requirement that an employee must provide his or her employers with certain notice and documentation before taking FFCRA leave.

In its revised regulations, the DOL clarifies and doubles down on some of its original positions, while making changes to other positions. Specifically, the DOL:

• Reaffirms that paid leave under the FFCRA may only be taken if the employer has work available for the employee to perform and denies FFCRA leave to workers when their employers do not have work for them.

• Reiterates that intermittent leave under FFCRA may only be taken with employer consent.

• Amends and narrows the definition of "health care providers" who are excluded from FFCRA coverage. Under the revised definition, a worker is a health care provider only if the individual is "capable of providing health care services," including "diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care." This means that FFCRA leave will now be available to certain health care industry employees—such as medical receptionists, records managers, maintenance staff, and others—who were previously excluded from coverage.

• Clarifies that required documentation must be provided "as soon as practicable, which in most cases will be when the employee provides notice" of the need for FFCRA leave.