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The DOL Revises FFCRA Regulations

The Department of Labor (DOL) has issued revised regulations on the Families First Coronavirus Response Act (FFCRA). At its base, the FFCRA provides two weeks of paid sick leave (EPLA) and up to an additional 10 weeks of paid expanded family and medical leave (EFMLA) when an employee is experiencing a qualifying condition. The duration of leave and rate of pay depend on what qualifying reason the employee is experiencing. The following are brief summaries of the revisions.

  • Eligibility
    • The revised regulations reiterate the work availability requirement—that for an employee to be eligible for either EPLA or EFMLA leave, the employer must have work available for the employee. To be clear, in order to be eligible for FFCRA leave an employee must have a qualifying reason under the FFCRA. The fact that an employee has been furloughed or laid off due to lack of work or a facility closure will generally not be a qualifying reason for FFCRA leave.
  • Documentation
    • Any documentation of an employee’s need for leave required under the FFCRA does not need to be given before the leave begins, but must be given as soon as practicable under the circumstances.
  • Intermittent Leave
    • The revised regulations clarify that Employees must have their employers’ permission to take EPLA or EFMLA leave intermittently.
      • The DOL does not consider EFMLA leave for an employee who takes off Mondays, Wednesdays, and Fridays to care for a child because the child’s school is closed on those days to be intermittent because each day is a separate and discrete reason for leave.
  • Exclusions
    • The DOL also revised the definition of those employees who may be excluded from FFCRA leave because they are a “health care provider.” Under the revised definition the following are health care providers:
      • anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA; and
      • any other person who is 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.
      • persons integral to running health care facilities such as IT and administrative professionals but do not provide care similar to those listed above.

The revised regulations provide some much-needed clarifications for employers.  The FFCRA is currently in place through December 31, 2020.  We encourage employers to seek counsel as to how these revisions may impact their employees’ use of or exclusion from the FFCRA.

This update was prepared by attorneys Jeff Worley and Ian Brinkman.  This update does not constitute legal advice and has been prepared for informational purposes only. Please contact us directly with questions about your specific situation.