IAMU Informer
Follow IAMU!
  • Informer News Feed
  • IAMU Website

Ahlers Client Alert - Department of Labor Issues Updates to FFCRA Regulations (Effective 9/16/20)

9/17/2020

0 Comments

 
By Attorneys Danielle Haindfield and Carrie Weber

The Families First Coronavirus Response Act ("FFCRA") is scheduled to remain in effect until December 31, 2020. The FFCRA provides additional paid leave for employees under certain qualifying conditions such as a quarantine order, diagnosis of COVID-19, or to care for a child whose school is closed due to the pandemic.

On September 11, the U.S. Department of Labor ("DOL") issued revisions and clarifications to its existing regulations that interpret and apply the FFCRA. This action was in response to an August federal court decision out of the Southern District of New York that invalidated parts of the existing regulations. The revisions will be effective September 16, 2020.

The court decision and subsequent DOL adjustments affect four areas of the regulations:

(1) The work availability requirement: The DOL regulations continue to require that an employer have "work available" for an employee to be eligible for FFCRA leave. Accordingly, employees who are furloughed or laid off are not eligible. The DOL emphasized that employers cannot withhold work simply to impede an employee's ability to take leave - the unavailability of work must be due to legitimate, nondiscriminatory, nonretaliatory business reasons.

(2) Intermittent Leave: Employees must still get permission from their employer to take intermittent leave under the FFCRA. Specifically, DOL noted that it was attempting to "balance the employee's need for leave with the employer's interest in avoiding disruptions by requiring agreement by the employer for the employer to take intermittent leave." Importantly however, the preamble to the new regulations specifically addresses the common situation in which an employee's child participates in hybrid learning. For example, the child might only attend in-person school Tuesday/Thursday and be home Monday/Wednesday/Friday. The DOL concluded that each day of school closure "constitutes a separate reason for FFCRA leave that ends when the school opens the next day." Accordingly, employees are entitled to leave consistent with their child's hybrid school schedule, and do not need employer consent. This leave is not considered "intermittent" because it is due to the school's hybrid schedule and not the employee's choice. If, however, a school is closed and doing virtual learning, and the employee indicates a need to be home with his/her child only some of the days because the employee has daycare the other days, then the employee's use of leave on those specified days would require employer consent and be considered "intermittent leave." These leave days are intermittent because they are at the election of the employee and not directed by the school's schedule.

(3) Documentation and Notice Requirements: Employees are not required to provide necessary documentation prior to taking applicable leave. Instead, documentation must be provided "as soon as practicable, which in most cases will be when the employee provides notice of" the need for leave. The DOL noted that if the leave is foreseeable, the employee should generally provide notice before taking leave. However, the DOL has reiterated that some leave is not foreseeable.

(4) Definition of "health care provider": The DOL has significantly narrowed the definition of "health care provider" to include only employees who: (1) meet the definition of "health care provider" under existing FMLA regulations; or (2) are "employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care." Health care providers are not entitled to FFCRA leave. Under the revised DOL regulations, health care providers include nurses or employees providing diagnostic, preventative, treatment, or other services "under the supervision, order, or direction of, or providing direct assistance to" a health care provider.

Detailed information regarding the updates to the DOL's regulations is available here.

The DOL's updated FAQ concerning the FFCRA is available here. 
 
If you have any questions about these changes or the application of the FFCRA generally, feel free to contact one of our Employment Law Practice Group attorneys.
0 Comments

Your comment will be posted after it is approved.


Leave a Reply.

      Subscribe To The Informer

      You can subscribe to The Informer by adding the RSS feed to your feed reader. Or, to request to be added to our weekly email blast, provide your information below.  NOTE-you must be an IAMU member (utility, affiliate, or associate) to receive the email blast.
    Submit

    Archives

    January 2023
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    RSS Feed

Picture

Copyright 2018 Iowa Association of Municipal Utilities