DOL Issues Revised FFCRA Paid Leave Rule

September 24, 2020|

Please note: Congress did not extend the FFCRA’s leave provisions into 2021. However, the relief package extends the FFCRA tax credit, which reimburses employers for the cost of providing FFCRA leave, through March 31, 2021.

You can read our original post regarding the FFCRA that was signed into law on March 18, 2020, here

On September 11, 2020, the U.S. Department of Labor (DOL) issued revisions and clarifications to its Temporary Rule implementing paid-sick-leave and paid-family-leave provisions of the Families First Coronavirus Response Act (FFCRA), which took effect April 1, 2020, and runs through December 31, 2020.

The revised regulations are in response to the August 3 ruling by the United States District Court for the Southern District of New York, which invalidated portions of the DOL’s original FFCRA regulations. Their finding was that the DOL’s interpretation of the FFCRA unlawfully excluded certain workers from the Act’s emergency paid-sick-leave (EPSL) and paid-family-leave coverage. The court also struck down a provision that allowed employers to deny leave when they don’t have work available, as well as provisions that require workers to submit documentation before taking leave and to get approval for intermittent leave.

The Revised FFCRA Regulations

In its revised regulations, which went into effect September 16, the DOL reaffirmed most of its prior position but provided clarity regarding when leave is available and when employees must seek approval to take leave. Specifically, the DOL:

  • Reaffirmed that FFCRA leave may be taken by the employee only when work is available to them. Despite the court’s ruling to the contrary, this is not a change in the DOL’s interpretation of the law as much as a clarification of its original rule.
  • Reaffirmed that an employee must obtain employer approval to take intermittent FFCRA paid sick or expanded FMLA leave, in accordance with longstanding FMLA requirements.
  • Revised the definition of health care provider to be consistent with the Family and Medical Leave Act (FMLA). The change means more workers are covered under the FFCRA’s paid sick leave and family and medical leave benefits.
  • Clarified that employees must provide documentation supporting his or her need for FFRCA paid sick or expanded family leave as soon as practical and that it’s not required prior to taking leave.
  • Corrected an inconsistency on when employees are required to give notice of their need to take expanded family and medical leave. Notice is required as soon as practicable, and if the leave is foreseeable, notice can be given prior to taking leave. If the leave is not foreseeable, leave may begin prior to the notice.

DOL Addresses the Work-Availability Requirement

Under the DOL rule, employees on furlough or layoff do not have paid sick or family and medical leave available to them. The language of the FFCRA granted paid leave only to employees who are “unable to work (or telework) due to a need for leave because” of one of six qualifying reasons related to COVID-19. The court found that the DOL’s rule inconsistently applied the work-availability requirement to three of the six reasons and furthermore did not explain the reason for the requirement.

In response to the court’s reasoning, the DOL reaffirmed that an employee is not eligible for paid leave for any of the six qualifying reasons unless the employer has work available for the employee to perform.

Intermittent Leave Rule Reaffirmed

The court found that the DOL’s initial rule requiring employer approval for intermittent FFCRA leave limited access to leave without explanation of why such consent was necessary. The DOL reaffirmed its position that intermittent leave can only be taken with an employer’s approval, clarifying “It is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid “unduly disrupting the employer’s operations. It best meets the needs of businesses that this general principle is carried through to the COVID-19 context, by requiring employer approval for such leave.”

Definition of Health Care Provider Narrowed

The FFCRA gave the DOL the authority to exclude certain health care providers and emergency responders from the emergency paid sick leave and expanded family and medical leave. The court found the definition of health care provider to be too broad.

The DOL narrowed the definition of health care provider with the new rule, focusing on the employee’s patient-care responsibilities rather than the industry of the employer. Those who are now covered under FFCRA leave at health-related companies might include IT professionals, building maintenance staff, HR personnel, food service workers, records managers, and consultants. Those who directly provide health care or diagnostic, preventative, or treatment services may not be covered.

Employer Takeaways

  • Although the DOL held its ground on much of its initial FFCRA interpretation, employers should update FFCRA policies, particularly those relating to leave notice and documentation.
  • Collect all FFCRA leave documentation to include employee name, dates for which leave is requested, qualifying reason for leave under the FFCRA, and a statement that the employee is unable to work.
  • Employers in the healthcare industry should consult with a licensed attorney when considering the impact on the availability of FFCRA leave for those employees who are no longer considered “health care providers” under the revised rule.
  • Actively monitor actions by the DOL to consider how EPSL and emergency medical family leave apply to their employees.

There is much more to the FFCRA and the DOL’s new temporary rule issued on September 11. It is recommended that you consult a licensed attorney for guidance on all FFCRA rules for employers.

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