On or about September 11, 2020, The Department of Labor issued a revised rule clarifying certain aspects of the Family First Coronavirus Relief Act (FFCRA).  These changes were generated in response to a New York District Court ruling challenging the language and application of the initial rule.  Here, we have provided a summary of those changes.  In subsequent articles, to be issued over the course of the next several days, we will further describe and define the changes and their potential application to your business.  The information is too expansive to effectively cover in a single article.  The Department of Labor, by and through this new rule, has provided much needed guidance and clarification to the application of the FFCRA to the evolving business and economic climate we currently confront. We begin here with an outline summary of the revised rule and pertinent changes.

1. Paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave.

• Applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
• FFCRA now explicitly requires that an employee may take paid sick leave or expanded family and medical leave only to the extent that a qualifying reason for such leave is a “but-for” cause of his or her inability to work.

             Employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform.

             If an employee is not expected or required to work, he or she is not taking a leave for purposes of FFCRA.

• The revised rule does not permit an employer to avoid granting FFCRA leave by purporting to lack work for an employees.  

            Applicable anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking such leave still apply.

2. Employees must secure employer approval to take intermittent FFCRA leave.

• Intermittent leave is specifically defined as “leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.”
• FFCRA permits an employee to take FFCRA leave on an intermittent basis only when taking leave;

             to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19;
             and only with the employer’s consent 

• The employer-approval condition is appropriate for qualifying reasons that do not exacerbate risk of COVID-19 contagion.

3. The definition of “health care provider” is revised to include only employees who are health care providers who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

• It is not enough that an employee works for an entity that provides health care services. 
• An additional category has been created to encompass only those “services that are integrated with and necessary to the provision of patient care” and that, “if not provided, would adversely impact patient care.”
• Health care services that do not fall into any of these categories are outside the definition.

4. The information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable.

• Previous rule required documentation to be provided “prior to” leave.
• Information must be sufficient for the employer to determine whether the requested leave is covered by the FFCRA.
• An employer may also request an employee to furnish additional material needed to support a request for tax credits.

5. Department revised what documentation is required for notice of expanded family and medical leave to his or her employer.

• An employer may require an employee to furnish as soon as practicable:

             The employee’s name;

             The dates for which leave is requested;

             The qualifying reason for leave;

             An oral or written statement that the employee is unable to work.

The revised rule is effective Wednesday, September 16, 2020 and shall remain in effect through December 31, 2020.  We will apprise you of any additional amendments or modifications.  In addition, we will provide a detailed analysis of each subsection of this rule in future articles.  In the interim, should you have any questions pertaining to the application of this rule to your business, please contact a member of our Employment Practices Group at 1-888-488-2638.