Late in the evening on Friday, September 11, 2020, The U.S. Department of Labor (DOL) issued revised Families First Coronavirus Response Act (FFCRA) leave rules. The DOL issued revised regulations on the FFCRA's paid-sick-leave and paid-family-leave provisions, clarifying when leave is available and when employees must seek approval to take leave.
The revisions follow a ruling from the U.S. District Court for the Southern District of New York that invalidated portions of the DOL's April 1 temporary rule. According to the agency, the revisions, which take effect immediately upon publication in The Federal Register on Sept. 16, do the following:
- Reaffirm that employees may take FFCRA leave only when work is actually available to them.
- Reaffirm that employees must have their employer's approval to take intermittent FFCRA leave.
- Revise the definition of "health care provider" to include "only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are 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."
- Clarify that employees must provide employers with documentation as soon as possible supporting their need for FFCRA leave.
- Correct an inconsistency on when employees may be required to provide employers notice of their need to take expanded family and medical leave.
The revisions also address the district court's order by providing additional explanations for certain requirements.
We are keeping up-to-date as new legislation and provisions are passed and are committed to keeping our clients well-informed. If you have any questions, or need any assistance, please don’t hesitate to reach out.
Update: On December 21, 2020, Congress passed the Consolidated Appropriations Act, 2021 (the Act), which provides additional COVID-19 relief to individuals and businesses. The bill was signed by the President December 27, 2020. It is important to note that the Act does not extend requirements for employers to provide emergency paid sick leave or emergency paid family and medicial leave under the Families First Coronavirus Response Act (FFCRA) past the original December 31, 2020, expiration date. However, Congress extended employers' abiliity to utilize the FFCRA tax credit until March 31, 2021, if employers voluntarily continue to provide FFCRA paid leave benefits to their employees.
Additionally, the Act does not expand the amount of leave available to employees under the FFCRA. As such, employers cannot claim the tax credit for employees who have already utilized all of their FFCRA leave entitlement. Employers should be mindful of additional paid sick leave and paid family leave requirements under state and local laws and should continue to comply with their own paid leave policies.
The Act also provides direct payments to individuals, an expansion of unemployment insurance benefits, additional funding for the Paycheck Protection Program (PPP), an extension of the employee retention tax credit, and an extension of the reimbursement program for federal contractors who provide paid sick leave. The Act does not include liability or employment law protection for employers.
