Labor & Employment Law Daily After federal court partly invalidates FFCRA rules, DOL makes regulatory changes
Wednesday, September 16, 2020

After federal court partly invalidates FFCRA rules, DOL makes regulatory changes

By Pamela Wolf, J.D.

Some of the changes reaffirm and further explain the DOL’s regulations; others make revisions.

In the aftermath of a New York federal district court’s August 3, 2020, ruling invalidating certain aspects of the temporary rule on Families First Coronavirus Response Act requirements, the Labor Department has issued “revisions and clarifications to the temporary rule,” which will be effective immediately upon publication in the Federal Register, slated for September 16.

Temporary FFCRA rule. On April 6, 2020, the DOL published a temporary rule implementing public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of the COVID–19 global pandemic. The leave is created by a time-limited statutory authority established under the FFCRA that is set to expire on December 31, 2020. The temporary rule was effective April 2, but the DOL had issued the unpublished temporary rule on April 1.

Court ruling. On August 3, a court in the Southern District of New York ruled that four parts of the temporary rule are invalid:

  • The requirement under § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave;
  • The requirement under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval;
  • The definition of an employee who is a “health care provider,” set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and
  • The statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

Rule changes. The DOL said that it has carefully examined the court’s opinion and has reevaluated the portions of the temporary rule that the court held were invalid. Given the statutory authorization to invoke exemptions from the usual requirements to engage in notice-and-comment rulemaking and to delay a rule’s effective date, the time-limited nature of the FFCRA leave benefits, the urgency of the COVID-19 pandemic, and the associated need for FFCRA leave, and the pressing need for clarity in light of the decision, the DOL has issued this new temporary rule, effective immediately, to reaffirm and revise its regulations in part, and further explain its positions.

The changes in to the temporary rule:

  • Available work. Reaffirm that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. The DOL said this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
  • Intermittent leave. Reaffirm that where intermittent FFCRA leave is permitted by regulations, employees must obtain their employer’s approval to take paid sick leave or expanded family and medical leave intermittently under § 825.50, which the DOL says is consistent with longstanding FMLA principles governing intermittent leave.
  • “Health care provider” redefined. Revise the definition of “health care provider” under § 825.30(c)(1) to mean employees who meet that definition under the FMLA regulations or 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.
  • Notice. Revise § 826.100 to clarify that the information employees must give their employer to support their leave should be provided to the employer as soon as practicable.
  • Revise § 826.90 to correct an inconsistency concerning when employees may be required to give notice of expanded family and medical leave to their employer.

“As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever,” Wage and Hour Administrator Cheryl Stanton said in a press release. “Today’s updates respond to this evolving situation and address some of the challenges the American workforce faces. Our continuing robust response to this pandemic balances support for workers and employers alike, and remains our priority.”

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