Effective September 16, 2020, the US. Department of Labor (DOL) has revised its regulations to clarify certain FFCRA issues in response to an August 2020 decision by a federal court in New York that invalidated portions of the initial temporary rules issued on April 1, 2020.

According to the DOL, the revisions to the temporary rule clarify and correct inconsistencies, but also reaffirm and provide additional explanation to certain requirements. The full text of the DOL News Release on the FFCRA rule revisions can be found here.

Specifically, the revised FFCRA regulations are:

  • 29 CFR § 826.20 – work-availability requirement

The DOL explained and reaffirmed that leave may be used only if the employer has work available for the employee and the employee cannot work due to a qualifying reason related to COVID-19. This work-availability requirement is applicable to all qualifying reasons where FFCRA leave may be used.

  • 29 CFR § 826.30 (c)(1) – definition of “Health Care Provider”

The DOL revised the definition of Health Care Provider to address the Court’s criticism that it was overly broad. A Health Care Provider is (1) anyone deemed a healthcare provider under 28 CFR 825.102 or 28 CFR 825.125 – definitions under FMLA, or (2) any employee who is capable of providing health services. Health services encompasses diagnostic services, preventive services, treatment services as well as services that are integrated with and necessary to the provision of patient care. The revisions to the temporary rule include specific examples of the type of services employees may perform and that may qualify them as Health Care Providers.

  • 29 CFR § 826.50 – requirements for intermittent leave

Consistent with longstanding FMLA principles, the DOL reaffirmed that employer’s approval is needed to take FFCRA intermittent leave.

  • 29 CFR § 826.90 and § 826.100 – notice and documentation requirements

The DOL clarified that documentation required under § 826.100 to take FFCRA leave need not to be given ‘prior to’ taking leave, but rather should be provided as soon as practicable, which generally occurs when the employee provides notice under § 826.90.

Regarding the notice requirement, the revised regulation clarifies that advanced notice for expanded family and medical leave is required as soon as practicable, if the leave is foreseeable. If the need for leave is not foreseeable, the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable. In addition, the notice could be given by the employee’s spouse, adult family member, or other responsible party if the employee is unable to do so personally.

The full text of the temporary rule, can be found here.

Related Practice Areas

Labor & Employment Law