Paid COVID-19 Leave Requirements Under the Families First Coronavirus Response Act Revisited

The U.S. Department of Labor (DOL) issued revised regulations, effective September 16, 2020, for the Families First Coronavirus Response Act (FFCRA) paid leave provisions. These revisions elaborate on the requirements for FFCRA leave in response to a ruling from a New York federal court that invalidated portions, as per the DOL’s interpretation, of the DOL’s temporary rules.

The revisions updated the employee notice requirement by clarifying the timeline when employees must provide notice of the need for COVID-19 leave and supporting documentation. Notice and supporting documentation are not required prior to leave. Notice for the use of emergency paid sick leave may only be required after the first workday that the employee uses paid sick leave. After the first workday, notice and supporting documentations may be required “as soon as practicable.” However, the regulations state that if the leave is foreseeable “it will generally be practicable to provide notice prior.”

The DOL reaffirmed that employees may only take FFCRA leave if the employer has work available for the employee. For example, if an employee was not scheduled to work because of a furlough or business closure that employee is not entitled to FFCRA leave. The regulations emphasized that the FFCRA qualifying reason must be the actual reason that the employee is unable to work.

The regulations also confirmed that intermittent COVID-19 leave still requires employer consent. Relatedly, the DOL stated that for the purposed of FFCRA, a school closure did not create an intermittent need for leave, but a new reason for leave each day of the school’s closure.

The regulations also revisited the definition of a healthcare provider and revised the definition to any employee (1) deemed a healthcare provider under the Family Medical Leave Act, or (2) who is capable of providing health services, i.e., diagnostic services, treatment services, or other services that are integrated with and necessary for the provision of patient care. The revisions include examples of qualifying and non-qualifying employees.

The regulations remain in effect until December 31, 2020.

For additional information about the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here or at (585) 258-2814.