On Sept. 11, 2020, the U.S. Department of Labor (DOL) announced revisions to the regulations implementing the Families First Coronavirus Response Act (FFCRA), following the New York federal court’s decision that invalidated some of the prior regulations as either inconsistent with the text of the FFCRA or insufficiently explained by the DOL in its original regulations.

In response to this decision, the DOL reaffirmed and revised certain provisions of the regulations, which will be published formally on Sept. 16, 2020 and will remain in effect until Dec. 31, 2020. The most significant change is with respect to the definition of health care provider. The DOL’s revisions of the regulations provide the following:

• Reaffirms FFCRA leave may not be taken if the employer does not have work for the employee to perform. The rule also clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.

• Reaffirms an employee must obtain the employer’s approval to take emergency paid sick leave or expanded family and medical leave intermittently.

• Revises the FFCRA’s documentation requirements to clarify an employee must provide documents to support the need for FFCRA leave as soon as practicable.

• Revises the definition of “health care provider” under the FFCRA, which previously included anyone employed at hospitals, medical schools, or other places “where medical services are provided” to mean employees who are considered health care providers under the Family and Medical Leave Act or who are employed to provide diagnostic services, preventive services, treatment services, or other services integrated with and necessary to the provision of patient care.

• Revises the requirement an employee needs to provide notice of a need to take expanded family and medical leave as soon as practicable.

The DOL revisions provide employers with clarity as to the DOL’s position on how employers should comply with the FFCRA to provide leave to their workforces. The DOL revisions are significant, particularly for health care employers who previously relied on the broad definition of “health care provider” to exempt their employees from leave under the FFCRA. Health care employers should carefully review their positions to determine who may now be eligible for leave under the FFCRA.  All employers covered by the FFCRA should review their current policies and procedures to ensure compliance with the new DOL revisions.