More Changes to the FFCRA Paid Leave Rule for Employers and Employees
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The U.S. Department of Labor (“DOL”) issued a new temporary rule revising the Families First Coronavirus Response Act. The new rule goes into effect today, September 16, 2020. The new rule is in response to the August 3, 2020 decision by a New York Federal District Court decision which invalidated several provisions of the DOL’s original rule.
Key changes in the rule are summarized as follows:
1. FFCRA leave is only available to an employee if work would have been available to the employee “but for” the FFCRA cause for leave. Employers cannot make work unavailable (exa: by furloughing the employee) in order to avoid the FFCRA leave.
2. Intermittent FFCRA leave is available to employees as long as they obtain prior employer approval to take intermittent leave. For example an employee who’s child’s school is closed but who can work for a portion of the time would be eligible for intermittent leave if approved by their employer.
3. Employees must provide documentation supporting their need for FFCRA leave as soon as practicable. Previously the rule had required documentation prior to the leave which was impracticable in many COVID pandemic situations.
4. The DOL revised its definition of “Health Care Providers”. You may recall that Health Care Providers were exempt from providing some FFCRA paid leave. The new rule incorporates the FMLA definition of a health care provider and clarifies that it refers to an “employee who is capable of providing diagnostic, preventive, treatment services, or other services… necessary to the provision of patient care…” The new rule also provides guidance on who is excluded from the new definition of “health care providers” such as maintenance services and billers for Health Care Providers.
This rule will remain in effect through December 31, 2020 when the FFCRA is set to end.
Employers are encouraged to contact the firm with any questions or concerns regarding the above as this is yet another change to the paid leave regulations to incorporate into practice. As you face the day to day questions of balancing business concerns, the law, and health and safety, the firm is here to assist in any way we can: info@barbascremer.com.