DOL reaffirms its FFCRA leave regulations following New York court ruling

Following a New York federal court’s ruling that struck portions of the DOL’s recent regulations governing FFCRA leave, the DOL has issued further rulemaking with expanded explanations. The new rulemaking largely reaffirms the prior regulations, including the specific rules struck by the New York court, but modifies the DOL’s prior rules regarding the FFCRA’s exclusion for employees of a health care provider by limiting the exclusion to those employees who are physicians or other health care providers, or “other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” apparently agreeing with the court in the New York case that janitors or cafeteria workers are not excludable, in other words, are entitled to FFCRA leave. The DOL’s new rulemaking will appear in the Federal Register 9/16/2020. The DOL summarizes its new rulemaking, as follows (quoting the DOL):

  1. The Department reaffirms that paid sick leave and expanded family and medical leave
    may be taken only if the employee has work from which to take leave and explains
    further why this requirement is appropriate. This temporary rule clarifies that this
    requirement applies to all qualifying reasons to take paid sick leave and expanded
    family and medical leave.
  2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the
    Department’s regulations, an employee must obtain his or her employer’s approval to
    take paid sick leave or expanded family and medical leave intermittently under
    § 825.50 and explains further the basis for this requirement.
  3. The Department revises the definition of “health care provider” under § 825.30(c)(1)
    to mean employees who are health care providers under 29 CFR 825.102 and
    825.125, and other employees who are employed to provide diagnostic services,
    preventive services, treatment services, or other services that are integrated with and
    necessary to the provision of patient care.
  4. The Department revises § 826.100 to clarify that the information the employee must
    give the employer to support the need for his or her leave should be provided to the
    employer as soon as practicable.
  5. The Department revises § 826.90 to correct an inconsistency regarding when an
    employee may be required to give notice of expanded family and medical leave to his
    or her employer.

With regard to parents of students on hybrid schedules (studying partly in school and partly remotely), the DOL clarified that such parents do not need to obtain permission from the company to take leave on the days the students are working remotely. The DOL explained that such leave is not intermittent leave technically (which would require permission it says, see #2 above) but is simply a day of regular leave.

0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *