Temporary Rule: Paid Leave Under the Families First Coronavirus Response Act, 29 CFR Part 826, 85 Fed. Reg. 57677 (Sept. 16, 2020); Families First Coronavirus Response Act: Questions and Answers
Responding to a court order invalidating portions of its previous temporary regulations (see our Checkpoint article), the DOL’s Wage and Hour Division has issued revised temporary regulations under the paid sick and family leave provisions of the Families First Coronavirus Response Act (FFCRA) and updated its related FAQs. The revised regulations are effective September 16, 2020, and are set to expire along with the FFCRA’s paid leave provisions on December 31, 2020. Here are highlights:
Work Availability Requirement. The regulations affirm and explain the requirement that an employee may only take FFCRA leave if an employer has work for the employee, but the employee cannot work due to a COVID-19-related qualifying reason. The preamble explains that if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave (e.g., the employer has temporarily or permanently closed the worksite), the employee “would have no work from which to take leave.”
Employer Approval of Intermittent Leave. The regulations also affirm and explain that an employee must obtain employer approval for intermittent FFCRA leave to avoid unduly disrupting the employer’s operations. The preamble explains the difference between intermittent leave, which is taken in separate blocks due to a single qualifying reason, and separate, consecutive requests for leave. For example, requesting leave to care for a child whose school is closed on alternate days would not be considered intermittent leave requiring employer approval because each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens again on the next day.
Definition of Healthcare Provider. The regulations revise the definition of “healthcare provider” for purposes of identifying employees who may be denied FFCRA leave. The revised definition includes individuals who are employed to provide diagnostic, preventive, or treatment services, or services that are integrated with and necessary to providing patient care (such as bathing, dressing, hand feeding, and transporting patients and laboratory samples). The definition excludes information technology professionals, maintenance staff, human resources personnel, cooks and food service workers, records managers, consultants, and billers.
Notice and Documentation Requirements. The regulations clarify that employees need not give notice or provide required documentation prior to taking FFCRA leave, but rather as soon as practicable. Nevertheless, if the need for leave is foreseeable, it will typically be practical for employees to provide notice before taking leave, and, in most cases, required documentation will be submitted when notice is provided.
EBIA Comment: As noted in its updated FAQs, the DOL interpreted the court order invalidating the prior provisions to be applicable on a nationwide basis—thus necessitating the regulatory change. Citing the temporary nature of the regulations, the urgency of the COVID-19 pandemic, and the associated need for FFCRA leave, the DOL opted to publish the revised regulations without the usual notice and comment period. For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVI.D (“Expanded FMLA Leave for Emergency Childcare”) and XVI.E (“Emergency Paid Sick Time”), and EBIA’s Fringe Benefits manual at Section XXII.G.4 (“Federally Mandated Paid Sick Leave (2020 Only)”).
Contributing Editors: EBIA Staff.