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Employers Beware: DOL to Change FFCRA Leave Rules After Court Decision

September 11, 2020

As employers try to keep up with ever-changing COVID-19 guidelines, a recent court ruling on the Families First Coronavirus Response Act (FFCRA) left them with more questions than answers.

Last week, the Department of Labor (DOL) sent a final rule to the White House for review after a federal court struck down several portions of the DOL’s regulations, finding that the DOL exceeded its authority. The remaining portions are not affected by the ruling. While the final rule is not currently available to the public, it is anticipated that it may address these rejected portions of the FFCRA:

  • Exclusion of Health Care Providers: The FFCRA excludes “health care providers” as employees eligible for leave. The DOL regulations defined “health care providers” broadly to include all employees who work in a health care environment, including those who do not provide health care, such as administrative staff or maintenance workers. The court found that the DOL’s definition was too broad, but it did not specify the proper definition, leaving uncertainty as to what employees are excluded “health care providers.”
  • Denial of Leave When There is No Available Work: The DOL regulations do not require an employer to provide paid leave if there is no available work for employees. For instance, an employer would not have to provide paid leave to furloughed employees even if they qualify for FFCRA leave. The court struck down this regulation, finding that the FFCRA language did not provide a basis for this denial of leave.
  • Required Documentation Before Taking Leave: The DOL regulations allowed employers to require documentation from employees on the reason for leave, the length of leave and other information. The ruling stated that an employer could require notice prior to the employee taking leave, but that documentation requirements cannot be a precondition to taking leave.
  • Employer Approval Before Taking Intermittent Leave: Under the DOL regulations, an eligible employee can take leave intermittently with employer consent if there is no risk that the employee might spread the virus to others. The court determined that FFCRA language did not require the employer’s consent and struck down that requirement.

What Does This Mean?

Until the DOL final rule is passed, employers should be careful before relying on the DOL regulations struck down in the ruling.

Please contact Rebecca Sha or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.