In response to a federal court decision, the U.S. Department of Labor has revised its guidance concerning the paid leave requirements of the Families First Coronavirus Response Act (FFCRA). The FFCRA requires employers with fewer than 500 employees to pay certain amounts of sick leave related to coronavirus, as summarized in the poster found at the DOL website link:
https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.
The new DOL Rule, found at revisions, took effect immediately upon publication in The Federal Register on September 16 and makes the following changes to the DOL’s previous Rule interpreting the FFCRA:
- Reaffirms that employees may take FFCRA leave only when work is actually available to them;
- Reaffirms that employees must have the employer's approval to take intermittent FFCRA leave;
- Significantly revises the definition of "health care provider" to narrow the list of employees who are exempt from the paid leave requirement;
- Clarifies that employees must provide employers with documentation as soon as possible supporting their need for FFCRA leave; and
- Corrects an inconsistency on when employees may be required to provide employers notice of their need to take expanded family and medical leave.
One of the most significant changes is found in part IV of the new Rule and impacts health care providers. The previous Rule allowed employers who are “health care providers” to exempt all their employees from the paid leave requirements. The revised Rule now focuses on the role of each employee in determining whether that employee is exempt. As the DOL states, “It is not enough that an employee works for an entity that provides health care services.” The revision provides examples of the types of employees of health care providers who are exempt and those who are not exempt. Health care providers should carefully examine Part IV of the revised Rule and reassess the exemption status of their employees.
Feel free to contact us if you have questions about this matter.
