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U.S. DOL Issues Revisions to Regulations of Families First Coronavirus Response Act (FFCRA)

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As a follow-up to our previous client email regarding The U.S. District Court striking down four provisions of the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor recently issued revisions to regulations that implement the Emergency Paid Sick Leave and the Expanded Family and Medical Leave Act provisions of FFCRA.

The revisions:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if his or her employer otherwise has work available.
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently. The U.S. DOL did update their Frequently Asked Questions and specified that the employer consent requirement does not apply to employees who take FFCRA leave in full day increments to care for children whose schools are operating on an alternate day or “hybrid” schedule. In these circumstances, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The USDOL apparently does not consider this type of leave to be “intermittent,” so employer consent is not required in that situation.
  • Revise the definition of “healthcare provider” to include physicians and others who make medical diagnoses. It also includes employees who are “capable of providing health care services.” Specifically, the employee must be “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care.”
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as “soon as practicable” (rather than prior to taking leave).

The revisions take effect Sept. 16, 2020.

If you have any questions on the FFCRA, please contact Caroline Organ, Director of Human Resources at 716-854-5034 or cmo@bspcpa.com.