DOL FFCRA Guidance: Clarifies Some, Expands Others

On Friday, September 11, 2020, the Department of Labor (DOL) announced a temporary rule that creates revisions to some leave regulations under the Families First Coronavirus Response Act (FFCRA). The revisions came in response to the U.S. District Court for the Southern District of New York’s August 3, 2020, decision invalidating portions of the relevant regulations.

Many of the decisions from September 11 are re-affirmations of prior guidance. Primarily, they re-iterated “that employees may take FFCRA leave only if work would otherwise be available to them.” They also re-affirmed that employees must have permission from employers to take intermittent leave under the FFCRA.

The temporary rule also clarifies that the documentation required to take FFCRA need not be given “prior to” taking the leave, but rather may be given as soon as practicable, “which in most cases will be when the employee provides notice.”

The only revision is to the definition of a healthcare provider in terms of eligibility for FFCRA leave. The DOL states that “The statute specifies that health care provider has the same meaning given that term in the FMLA.” Under the Family Medical Leave Act (FMLA), a health care provider is:

  • A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
  • Any other person determined by the Secretary to be capable of providing health care services.
    • Other person is defined as anyone providing medical services including (but not limited to) podiatrists, dentists, clinical psychologists, optometrists, and chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants.

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