U.S. Department of Labor revises rules and requirements for FFCRA emergency leave

In response to an August federal court decision that invalidated four of the requirements under the emergency paid sick leave and expanded family and medical care leave provisions of the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor (DOL) has made changes and clarifications to the existing temporary rule in place under the FFCRA since April 1 (currently due to expire Dec. 31). These changes took effect Sept. 16. 

In New York v. U.S. Dept. of Labor, in response to a lawsuit brought by the State of New York challenging certain provisions of the temporary rule, the District Court for the Southern District of New York invalidated four requirements under the temporary rule, effective Aug. 3. Below are the four requirements, along with the resolution of each by the DOL under the revised temporary rule:

1. Paid sick leave and expanded family and medical leave are available only if an employee has work from the employer at the time of the leave – Under the original temporary rule, FFCRA leaves were available for purposes of certain COVID-19-related leave scenarios only if the employer had work for the employee at the time of the leave. This requirement now applies to all FFCRA leave scenarios, such that COVID-19, and not the employer’s lack of work for the employee, must be the reason that the employee is unable to work as a prerequisite for any FFCRA leave.

2. An employee may take FFCRA leave intermittently only with employer approval – The requirement remains unchanged, such that employers may but need not provide FFCRA leaves on an intermittent basis.

3. Definition of an employee who is a “health care provider” – Employers continue to be able to  exclude “health care providers” from eligibility for FFCRA leaves, but now with a modified definition of same, including employees who “provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

4. Documentation requirements – Under the original temporary rule, FFCRA leaves were available only if the employee provided the employer with documentation of the reason for the leave in advance. Under the revised temporary rule, the employee must provide the documentation to the employer “as soon as practicable.”

What does CohnReznick think?

The DOL’s response to the District Court’s decision was to accept certain aspects of the court’s holding, but to reject others. Of principal importance is the expansion of the requirement that the employer must have work for the leave-requesting employee for all FFCRA leave scenarios. The DOL also rejected the court’s position that an employer should not have the authority to determine whether to permit intermittent FFCRA leaves, with the result that this employer entitlement has been retained under the revised temporary rule. Finally, the DOL has accepted the court’s rejection of the requirement that an employee must provide the required documentation of their need for the leave in advance of the commencement of the leave, with the result that the employee now must provide the documentation to the employer as soon as practicable.


Dana Fried, JD, LLM, Managing Director, National Tax Services


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    Contact Dana Dana+Fried dana.fried@cohnreznick.com
    Dana Fried

    JD, LLM, Managing Director - National Tax Services

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