The Department of Labor revised FFCRA regulations related to the paid sick leave and expanded family and medical leave provisions, in light of the U.S. District Court for the Southern District of New York in an Aug. 3, 2020, decision that found portions of the regulations invalid. The revisions clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions and will become effective Sept. 16, 2020.

Highlights include the following actions:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

In addition, DOL FAQs were updated to add Q&As 101-103. See questions and abbreviated answers below.

  1. When were the invalidated provisions of the Department’s FFCRA paid leave regulations vacated? August 3, 2020. Only certain provisions of those regulations were at issue in the lawsuit New York v. Scalia, Civ. No. 20-3020-JPO (S.D.N.Y.). The challenged provisions were vacated when the District Court issued its opinion and order on August 3, 2020. As of August 3, 2020, the work availability requirement provisions, the provision requiring an employee to obtain his or her employer’s approval before taking FFCRA leave intermittently, the provision defining “health care provider” for purposes of employees whose employer may exclude them from FFCRA leave, and the provision requiring documentation of a need for leave prior to taking leave were vacated. The remainder of the FFCRA paid leave regulations were unaffected.

    102. Where did the District Court’s order vacating certain provisions of the FFCRA paid leave regulations apply? Nationwide, not just as to the parties in the
    case.

    103. When do the revisions to the Department’s FFCRA paid leave regulations become effective? September 16, 2020. They are effective from September 16, 2020 through the expiration of the FFCRA’s paid leave provisions on December 31, 2020.

    For more information, please see FAQ, news releaserevised regs and our bulletin below.

 

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