You may recall a few weeks back that a federal court struck down portions of the USDOL regulations interpreting the Famlies First Coronavirus Response Act.

The open question at the time: What would the DOL do?

Late Friday, we got our answer — revised regulations designed to overcome the judicial concerns or, challenge the judicial concerns head on.  They become effective on Wednesday, September 16, 2020.

The biggest answer is actually in regard to intermittent leave.

In the revised regulation, the DOL “reaffirms and provides additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.”

This is a big deal because one of the headaches that employers have been dealing with — particularly as kids go back to school (either remotely or in a hybrid) — is whether the employer must provide intermittent leave upon request.

The answer for now, is no. As it has stated in the additional guidance in support of the regulation:  “Permitting employees to take intermittent leave without restriction would create tension with how both Congress and the Department have understood intermittent leave in most of the circumstances for which it is permitted under the FMLA.”

But, the guidance should still be read in conjuction with the other recent guidance regarding hybrid school openings. in such a case, the USDOL says that because a school is closed and then opened, the need for leave for a day under THAT circumstance isn’t really intermittent leave but each closure is independent of the other.

“The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.”

So, that is bound to lead to confusion — particularly because this is part of the description, not in the regulation itself.  Sigh.

What else do the revised regulations do?

  • The regulations make clear that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave and explains further why this requirement is appropriate. This temporary rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
  • The regulations also revise the definition of “health care provider” under § 825.30(c)(1) to mean employees who are health care providers under the FMLA regulations or who are employed to provide diagnosic, preventative or treatment services (and other services specified).
  • And the regulations also clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer “as soon as practicable.”

For employers that are covered by the FFCRA (that is, those with 500 employees or less), this guidance gives an answer (for now) on the issue of what would happen after the federal court decision.

Of course, this could lead to a new round of judicial intervention. But with the statute scheduled to expire on its own on December 31, 2020, it’s anyways guess as to when or if that will happen.