91视频

Since April, employers have been carefully tracking their obligations for providing emergency paid leave under the Families First Coronavirus Response Act (FFCRA), as well as the changing and expanding regulations and guidance from the U.S. Department of Labor (DOL). On Aug. 3, a federal court in New York invalidated four portions of the DOL鈥檚 regulations, leaving employers nationwide with unanswered questions about how and whether to apply this ruling.

On Sept. 11, the DOL issued revised FFCRA regulations in response to the federal court鈥檚 decision and to provide further clarification about FFCRA eligibility. While the DOL stood behind its original regulations regarding intermittent leave and the work availability requirement, it did narrow the health care provider exemption and modified the timing of when documentation could be required, so employers should be aware of these updates and may need to consider adjustments to policies and practices.

Employees may provide FFCRA documentation as soon as practicable

Employers should consider the timing of requiring FFCRA documentation from employees. The initial regulation required employees to provide documentation before taking FFCRA leave. However, the revised regulation states that an employee must provide the required information and documentation 鈥渁s soon as practicable.鈥� Therefore, employers should modify their policies or practices if they previously required documentation as a condition of and prior to taking FFCRA leave.

The health care provider exemption now depends on the employee鈥檚 duties

The DOL narrowed its definition of 鈥渉ealth care provider,鈥� limiting the type of employees exempted from FFCRA leave. Previously, the definition of 鈥渉ealth care provider鈥� was so broad that the federal court noted that it included 鈥渁n English professor, librarian, or cafeteria manager at a university with a medical school.鈥� In revising its definition of 鈥渉ealth care provider,鈥� the DOL focused on the roles and duties of employees rather than the role of the employer. Accordingly, the revised definition of 鈥渉ealth care provider鈥� includes only those employees who directly 鈥減rovide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.鈥� Employers that were previously relying on the broad definition of 鈥渉ealth care provider鈥� to exempt all of their employees from FFCRA leave may need to reconsider whether employees are actually eligible for emergency paid leave based on each employee鈥檚 duties.

Other challenged provisions remain unchanged

Despite the challenge in federal court, the DOL reaffirmed its position with respect to the work unavailability requirement and the requirement for employer consent before taking intermittent leave. If employers relied on the federal court decision to make any changes to their policies and practices, this may require adjustment again.

Specifically, the DOL鈥檚 revised regulations confirm that FFCRA leave is only available to employees who are unable to work or telework due to a qualifying event. Employees are precluded from FFCRA leave if the employer did not have work for the employee or the employee was otherwise unscheduled to work, regardless of whether the employee also happens to have a qualifying event.

In addition, employer consent is still required before employees are entitled to FFCRA intermittent leave. However, employers should keep in mind that intermittent leave is still only appropriate for qualifying events under FFCRA that do not present a public health risk, such as when an employee needs to care for a child whose school or place of care has been closed or is unavailable (or other qualifying reasons when the employee is working remotely and not reporting to the work site). In such an event, employers are entitled and obligated to give consent before providing FFCRA intermittent leave.聽Note, however, if schools are operating on alternate day schedules or other hybrid attendance, the DOL does not consider this to be intermittent leave and employer consent cannot be required as a condition of providing the leave to an eligible employee.

The revised regulations provide more guidance on FFCRA leave and apply nationwide, and this is another reminder of the constantly evolving landscape. Employers should seek advice from counsel to ensure compliance with all FFCRA regulations, as well as consider potential overlap with other state laws for sick or other protected leave.

Heather Fossity is an attorney with Barran Liebman LLP. She represents employers in a variety of employment matters. Contact her at 503-276-2151 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.