On August 3, 2020, the U.S. District Court for the Southern District of New York ruled that certain aspects of the U.S. Department of Labor (DOL)’s Families First Coronavirus Response Act (FFCRA) Final Rule were invalid. As a result, on September 11, 2020, the USDOL issued a revised Final Rule, which can be accessed here.
In summary, the DOL’s revised Final Rule:
- Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them. It cannot be taken if there is no work available (for example, if the employer is shut down).
- Reaffirms and provides additional explanation for the requirement that an employee have employer approval to take FFCRA leave on an intermittent basis.
- Revises the definition of “healthcare provider” as to the healthcare provider exemption to include only employees 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. Therefore, it is no longer enough that an employee simply works for an entity that provides healthcare services and, therefore, information technology professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers in the healthcare industry may receive the benefits of the FFCRA, if otherwise eligible.
- Clarifies that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable, but need not provide it prior to the start of the leave.
The revised Final Rule will take effect on September 16, 2020. In order to provide additional explanation and clarification as to the revised Final Rule, the DOL amended its FAQs 16, 21, 22, 56, 98 and 99, which can be accessed here.
Employers, and in particular those in the healthcare industry, must review their policies and employment practices to ensure compliance with the USDOL’s new FFCRA guidance.
Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...
Scott Humphreys is a litigation associate practicing in the areas of labor and employment, and environmental law. Prior to joining Connell Foley, Scott was a law clerk to the Hon. Sallyanne Floria, A.J.S.C. of the Superior Court of ...