USDOL Revises FFCRA Rules for Emergency PSL and FMLA

The U.S. Department of Labor (USDOL) has revised its Families First Coronavirus Response Act (FFCRA) rules regarding emergency paid sick leave and emergency FMLA leave following an August 2020 federal court decision that invalidated portions of the regulations. The revision to the rule is scheduled to be published and take effect on September 16, 2020. The revisions:

  • 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 must have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “health care provider” to include only employees who meet the definition of that term under FMLA regulations, or who are employed to provide diagnostic, preventative or 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; it is not enough that an employee works for an entity that provides health care services.
  • 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. Documentation need not be given “prior to” taking leave but rather may be given as soon as practicable, which in most cases will be when the employee provides notice.