September 18, 2020

Revised Regulations of the Family First Coronavirus Response Act

The U.S. Department of Labor (DOL) issued revised regulations on the Families First Coronavirus Response Act’s (FFCRA’s) paid sick leave and paid family leave provisions, clarifying when leave is available and when employees must seek approval to take leave. Revisions became effective September 16, 2020.   The regulations:

  • Reaffirm that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm that employees must have their employer's approval to take intermittent FFCRA leave and further clarify the difference between intermittent and consecutive requests for leave. The DOL said that "the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because the school is physically closed on particular days as determined by the school, not the employee."
  • Revise the definition of "health care provider" to include (1) anyone who meets the definition of that term under the Family and Medical Leave Act regulations or (2) anyone 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. The revised regulations include examples of the types of employees who qualify as health-care providers and those who do not.
  • Clarify that advance notice may not be required for use of emergency paid sick leave and that notice may only be required after the first workday or portion thereof for which the employee uses paid sick leave. After the first workday, notice should be provided “as soon as possible” and may be provided by an employee’s family member or other spokesperson if the employee is unavailable. For leave due to school closure, notice should be provided as soon as practicable. If the closure is foreseeable, prior notice should be provided in advance of the need for leave.
  • Clarify that required documentation need not be given “prior to” taking paid sick leave or expanded family and medical leave but has to be provided as soon as practicable. 

As a reminder, FFCRA has two major provisions: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Under the EPSLA, covered employers must pay sick leave of up to 80 hours, or roughly 10 days, to employees who need to take leave for certain coronavirus-related reasons. Employees may be eligible for an additional 10 weeks of family leave paid at two-thirds of their regular pay under the EFMLEA to care for a child whose school or place of care is closed or whose child-care provider is unavailable because of COVID-19. The FFCRA does not apply to private-sector employers with 500 or more employees

Employers and workers should check state and local laws for additional leave eligibility and requirements. For example, in California's Alameda County, workers in certain high-risk areas who test positive for COVID-19 and who are not receiving unemployment benefits or paid sick leave can collect a one-time $1,250 stipend to self-quarantine for 14 days.   Employers can also reference the DOL website for updated information.

Sources SHRM, “DOL Issues Revised FFCRA Leave Rules” CNBC, “Could you get paid to quarantine during the Covid-19 pandemic?” Maria Dwyer, Member, Clark Hill, “U.S. Department of Labor Revises Regulations under the Families First Coronavirus Response Act”

HR/AA consultants are available to work with you on a project, interim or ongoing basis including assistance with understanding, implementing and administering best practices related to the current COVID-19 challenges we are facing.

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