The Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) in response to a federal court’s decision that found portions of the regulations invalid.
In the revised regulations, which took effect September 16, 2020, the DOL:
- Reaffirms emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) may be taken only if the employer has work available from which an employee can take leave, and provides its reasoning that if the employee is not scheduled to work, there is no work from which to take leave
- Confirms intermittent leave under FFCRA can only be taken with employer approval
- Provides an amended definition of “health care provider” that is narrower than its original regulations to cover employees who are health care providers under the classic Family and Medical Leave Act (FMLA) definition, as well as other employees who are employed to provide diagnostic, preventive, or treatment services, or other services that are integrated with and necessary to the provision of patient care
- Clarifies an employee must provide notice of the need for leave and supporting documentation “as soon as practicable” as opposed to prior to the leave
Of particular interest, the DOL stood firm that intermittent FFCRA leave can only be taken with employer approval and when the employee is taking leave to care for their child whose school, place of care, or child care provider is closed or unavailable for reasons related to COVID-19 and no other person is available to care for the child, and, as a result, the employee cannot do assigned work or telework.
The one exception is teleworking. The DOL allows intermittent leave under FFCRA for personal illness only if the employee is teleworking as it does not pose the risk of spreading the coronavirus to others in the workplace. Additionally, the DOL rationalizes that an employee cannot telework without employer approval, so they would not be able to telework intermittently without employer approval.
As far as intermittent leave for childcare, the DOL provided guidance for a scenario in which an employee needs leave to care for a child who participates in hybrid learning. The child attends in-person learning Tuesdays and Thursdays, but isn’t allowed on campus on Mondays, Wednesdays, and Fridays. In this scenario, the school is effectively closed to the child as determined by the school, not the employee.
The DOL defines each day of school closure in this hybrid schedule as a separate reason for FFCRA leave that ends when the school opens the next day, as opposed to intermittent for a single reason. So, technically, intermittent leave would not be needed, and the employer-approval condition does not apply.
For full explanations of the new regulations, see the DOL’s updated FAQs that reflect the new guidance.
Cheryl Hoover is an HR consultant at TASB HR Services. Send Cheryl an email at email@example.com.
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