Sept. 16, 2020 U.S. Department of Labor Implements Minor Revisions To Its Families First Coronavirus Response Act (“FFCRA”) Regulations

Today, two minor changes to the DOL’s regulations interpreting the FFCRA go into effect: (1) the definition of “health care provider(s)” who may be denied paid leave under the Act has been narrowed; and (2) the timeline for employees to provide documentation supporting their need for leave has been expanded. These changes to the FFCRA regulations, described in more detail below, were implemented in response to a ruling last month by a federal District Court in New York that portions of the DOL’s regulations were invalid. To provide clarification to employers after this ruling, the DOL issued revised regulations largely reaffirming its prior interpretations of the Act’s paid leave provisions, but with these minor changes.     

The DOL’s original definition of “health care provider(s)” who could be denied paid leave under the FFCRA in order to prevent disruption to the healthcare system’s ability to respond to the pandemic, included anyone employed at hospitals, medical schools and various other entities where medical services were provided, regardless of their position or function. Under the revised regulations, “health care provider(s)” include only those employees who are actually providing healthcare services. This means anyone who is employed to perform diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care that, if not provided, would adversely impact patient care, as well as any employee who otherwise meets the definition of “health care provider” in the Family and Medical Leave Act (“FMLA”) regulations.

The DOL’s original regulations also stated that employees could be required to submit documentation supporting their need for FFCRA leave prior to taking such leave. However, the DOL has now expanded that time period, clarifying that employers may not require documentation prior to the employee taking protected leave where doing so is not “practicable,” i.e., reasonably possible. In most situations where the need for leave is foreseeable, employees should be able to provide documentation prior to leave. However, where the need for leave is unexpected (e.g., where COVID-19 symptoms appear suddenly or a child’s school is closed without notice), an employee must be allowed to begin taking paid leave right away and provide the necessary documentation as soon as practicable. 

For a detailed summary of the DOL’s FFCRA regulations and other published guidance, please see our FFCRA Guide.

What This Means

Fortunately, the DOL did not change any fundamental elements of the FFCRA paid leave rules, which could have caused confusion for employees and additional burden for employers that have already published and implemented detailed FFCRA policies and procedures. The relatively minor changes made today do, however, warrant a review and possible revision to your process for approving FFCRA leave without supporting documentation. Moreover, if you employ health care workers, you should be cognizant of the new definition “health care provider” when making leave decisions.