The United States Department of Labor’s (DOL) Wage and Hour Division (WHD) Has Revised FFCRA Regulations

• On September 11, 2020, the US Department of Labor’s WHD announced revisions to the regulations that implement the paid sick leave and expanded family and medical leave provisions of the FFCRA
• This revised rule was issued in light of the US District Court for the Southern District of New York’s August 3, 2020, decision that invalidated portions of the relevant regulations
• The revised rule takes effect on September 16, 2020
• The revisions do the following:
    o Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them
    o Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently
    o Narrow the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care
    o Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable
    o Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers
• The revised rule, which has not yet been officially published, can be found here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-20351.pdf
• The US DOL press release regarding the revised rule can be found here: https://www.dol.gov/newsroom/releases/whd/whd20200911-2

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