On September 11, 2020, the U.S. Department of Labor (“DOL”) issued revised regulations to clarify certain rights and employer responsibilities under the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (“FFCRA”).  The revisions were made in response to a recent decision of the U.S. District Court for the Southern District of New York (“SDNY”), which invalidated certain provisions of the FFCRA regulations.

The FFCRA, which we discussed here, requires employers with fewer than 500 employees to provide emergency paid sick leave (“EPSL”) and emergency Family and Medical Leave Act leave (“EFMLA”) to employees who meet certain COVID-19-related conditions.  DOL issued regulations implementing the FFCRA on April 1, 2020.

In response to the SDNY decision, DOL made the following clarifications (#1-2, below) and revisions (#3-5, below) to the FFCRA regulations, effective September 16, 2020:

  1. Employees are eligible for FFCRA leave only if their employer has work available for the employee to perform; in other words, the qualifying reason for the leave must be the “but-for cause of the employee’s inability to work.”
  2. Employees may take FFCRA leave intermittently only with their employer’s consent.
  3. Employees must provide their employers with the required documentation (including information about their qualifying reason for leave and any other supporting documentation such as a quarantine or isolation order) that supports their need for EPSL and/or EFMLA leave “as soon as practicable.”
  4. Employees who need to take leave must provide the required documentation “as soon as practicable” and not necessarily “prior to” taking the leave.
  5. Employees do not need employer approval to take FFCRA leave to care for their children whose schools are operating on an alternate day basis (or other hybrid attendance schedule), because such leave technically is not intermittent leave. The revised rule explains that “intermittent leave is not needed because the school literally closes [. . .] and opens repeatedly,” and “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

Finally, in response to the SDNY striking down the FFCRA’s definition of “health care provider” as being too expansive, DOL revised the definition to narrow the category of individuals who are considered a “health care provider” and who thus can be excluded by their employer from taking FFCRA leave.  The FFCRA’s revised regulations adopt the more narrow definition of “health care provider” under the Family and Medical Leave Act regulations (29 C.F.R. 825.102) and include those 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.  Notably, the revision did not change the definition of “health care provider” for purposes of determining who can advise an employee to quarantine or self-isolate.

The DOL’s FFCRA FAQs page has been updated to reflect the new changes to the regulations.  The regulations remain in effect through the FFCRA’s expiration date of December 31, 2020.

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

Photo of Teresa Lewi Teresa Lewi

Teresa Lewi represents and counsels employers on a wide range of federal, state, and local employment laws. She focuses her practice on trade secrets, non-competition, executive compensation, separation, employee mobility, discrimination, and wage-and-hour issues.
Teresa has successfully tried cases in federal and state…

Teresa Lewi represents and counsels employers on a wide range of federal, state, and local employment laws. She focuses her practice on trade secrets, non-competition, executive compensation, separation, employee mobility, discrimination, and wage-and-hour issues.
Teresa has successfully tried cases in federal and state courts, and she also conducts internal investigations concerning trade secrets and workplace issues.

Teresa regularly represents clients in the life sciences, technology, financial services, sports, and entertainment industries. She has resolved matters through the pretrial, trial, and appeals process, as well as through alternative dispute resolution methods. In particular, Teresa has helped companies achieve highly favorable outcomes in high-stakes disputes over the protection of trade secrets or enforcement of agreements with employees.

Teresa’s practice also includes conducting workplace audits, drafting employment agreements and workplace policies, and advising companies on employment law developments (including recent changes to non-competition laws and COVID-19-related regulations).