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September 14, 2020

Families First Coronavirus Response Act Revised Final Rule

The Department of Labor (“DOL”) issued a revised Final Rule, effective on September 16, addressing a federal court ruling in August that its Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”) exceeded its authority.
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Mon, 09/14/2020

The Department of Labor (“DOL”) issued a revised Final Rule, effective on September 16, addressing a federal court ruling in August that its Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”) exceeded its authority. The revisions, however, largely reaffirm DOL’s earlier positions, which the federal court found were overly broad.

DOL issued the Final Rule providing, in part, that employees:

  • Were not entitled to Emergency Paid Sick Leave, nor to any Emergency Family and Medical Leave Act leave in most circumstances if their employer “does not have work” for them;
  • Were only permitted to use intermittent leave in limited circumstances where their employer approved and risk of workplace infection was not a concern; and
  • Had to submit certain documentation regarding their leave prior to taking it.

DOL also defined “health care providers,” who could be exempt from the paid leave mandates as all employees of any organization providing health care services, and supply chain entities and contractors. On August 3, 2020, the Southern District of New York concluded that parts of the Final Rule were overly broad and, therefore, invalid. For MSE’s coverage of this decision, visit https://www.mselaborlaw.com/news/ny-judge-shuts-down-dols-attempt-limit-paid-leave-response-covid-19.

The revised Final Rule attempts to address the Court’s findings. However, in doing so, DOL reaffirmed its commitment to minimizing the employees who are eligible for the FFCRA’s protections. The revised Final Rule reaffirms DOL’s earlier position – rejected by the Court – that leave under the FFCRA can only be taken “if the employee has work from which to “take leave.” Additionally, the DOL confirmed its earlier interpretation that intermittent leave is allowed only if an employee gets permission from their employer.

DOL did address the Court’s conclusion that its definition of “health care provider” was “vastly overbroad,” and potentially prevented too many workers from utilizing the leave by redefining a “health care provider” as a worker who is “capable of providing health care services,” including diagnostic, preventative, or treatment services, or other services that are “integrated with and necessary to the provision of patient care,” or who would otherwise be a health care provider under the Family and Medical Leave Act (“FMLA”).

Finally, DOL amended the Rule regarding the notice employees must provide to their employers, requiring notice “as soon as practicable,” which may be in advance under certain circumstances.

Additional information about the revised Final Rule is available at https://www.dol.gov/agencies/whd/ffcra. The revised Final Rule will be available in the Federal Register on September 16, 2020 https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act.

For more information on workers’ rights during the coronavirus pandemic, visit MSE’s Coronavirus Information page at https://www.mselaborlaw.com/resources/coronavirus-information.

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