September 15, 2020
Authored by: Christy Phanthavong and Lily Kurland
In August, we informed you of a decision by a federal district court in New York (the “Court”) that invalidated four key provisions of the federal Department of Labor’s (“DOL”) regulations interpreting the Families First Coronavirus Response Act (“FFCRA”). On September 11, 2020, the DOL acknowledged the nationwide impact of the Court’s ruling, and issued much-anticipated revised regulations addressing the four provisions. The new regulations will be formally published, and become effective, on September 16, 2020.
As described in detail below, in the new regulations, the DOL: (a) affirmed the “work-availability” requirement; (b) affirmed the “employer consent” requirement for intermittent leave; (c) narrowed the scope of the “health care provider” definition for purposes of the available exemption from the leave entitlement; and (d) clarified the timing of notice and documentation requirements. The DOL also provided new and revised Q&As on these subjects (see Q&A #s 16, 21, 22, 56, and 98-103).
In the revised regulations, the DOL held firm to the requirement that employees are only entitled to leave if they are unable to work “because of” a COVID-19 qualifying reason. The DOL addressed the Court’s concerns with consistency by clarifying that this work-availability requirement applies to all qualifying reasons for FFCRA leave. Thus, according to the DOL:
- FFCRA leave (both Paid Sick Leave for any qualifying reason and Expanded FMLA leave) may only be taken if the employee has work from which to take leave. In other words, an employee cannot take FFCRA leave if the employer would