Monday, September 14, 2020

DOL revises FFCRA regulations

Remember about a month ago, when a federal court in New York ruled that some provisions in the FFCRA regulations were invalid? Welp, now the DOL has revised the regulations to clarify the paid leave requirements under the Families First Coronavirus Response Act. The DOL describes the primary "revisions" as:

  • 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 have employer approval to take FFCRA leave intermittently. 
  • Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act 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. 
  • 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.
The first two bullets notably double down on the DOL's regs before the NY decision - but, part of the court's criticism was that DOL did not adequately explain their decisions. So, the new DOL regs provide more explanation. 

The third bullet point is DOL's biggest concession, a far narrower definition of the "healthcare provider" exclusion from benefits. The regulations clarify that the exception applies to people who actually provide healthcare services, and not to people who only provided services to healthcare services (e.g., "information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers"). 

Finally, the last two bullet points reflect a change in the notice requirements. Instead of requiring notice "prior to" leave, the regulations now require notice "as soon as practicable" - but,note that "it will generally be practicable to provide notice prior to the need to take leave."

Although the FFCRA expires at the end of 2020, there is still plenty of time for new lawsuits on this (especially if Congress extends it into 2021) - so stay tuned!

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