We previously wrote about the August 3, 2020 U.S. District Court for the Southern District of New York (the “District Court”) struck down four provisions of the Department of Labor’s (“DOL”) regulations interpreting employee leave eligibility and entitlement under the Families First Coronavirus Response Act and other FFCRA paid leave updates.

On September 11, 2020 the DOL issued revised regulations as a result of that court decision.  The Revised Final Rule became effective September 16, 2020.

Important provisions in that Final Rule are below:

  1. DOL reaffirmed “work-availability” requirement that paid sick leave and expanded family medical leave are only available if an employer has work for the employee at the time of the leave.
  2. DOL reaffirmed employees may take FFCRA leave intermittently with employer approval but employers are not required to provide leaves on an intermittent basis.
  3. DOL reaffirmed the ability to exclude “health care providers” from eligibility for paid leave under FFCRA but narrowed the definition to include the following:
    1. employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
    2.  This definition includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.
    3. The definition of “health care provider” contained in this section applies only for the purpose of determining whether an Employer may elect to exclude an Employee from taking leave under the EPSLA and/or the EFMLEA, and does not otherwise apply for purposes of the FMLA or section 5102(a)(2) of the EPSLA.
  4. DOL revised the documentation requirement from employees required to provide reason for the leave in advance to providing the reason as soon is practicable.

We are in this together,

Brinker Simpson & Company, LLC

Disclaimer: This alert is for informational purposes only and does not constitute professional advice. Information contained in this communication is not intended or written to be used as tax advice & cannot be used by the recipient to avoid penalties that may be imposed under the Internal Revenue Code. We strongly advise you to seek professional assistance with respect to your specific issue(s).