September 11, 2020

The Department of Labor’s Wage and Hour Division (WHD) has posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).

The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions. These revisions are being made in light of the U.S. District Court for the Southern District of New York’s August 3, 2020 that found portions of the previous regulations invalid.

Specifically, the revisions:

-Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them;

-Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently;

-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 required documentation supporting their need for FFCRA leave to their employers as soon as practicable; and

-Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

These revisions will become effective immediately upon publication in the Federal Register.

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