DOL Issues Revised FFCRA Regulations

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division posted revised regulations to clarify certain rights and responsibilities under the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”). DOL’s actions are in direct response to an August 2020 New York Federal District Court ruling that invalidated parts of prior FFCRA regulations. The revised regulations will become effective September 16, 2020, when they are published in the Federal Register.

Key portions of the revised regulations provide the following:

  • An employee is only entitled to Paid Sick Leave (“PSL”) and Expanded Family and Medical Leave (“EFML”) under FFCRA if the employer would otherwise have work available for that employee to perform. If there is no work available due to circumstances other than a qualifying reason for the leave, i.e. the employer has laid off or furloughed employees, or has temporarily or permanently closed the worksite, then an employee is not entitled to FFCRA leave. This “available work” requirement applies to all qualifying reasons for FFCRA leaves.
  • An employee must obtain employer approval to take intermittent FFCRA leave for any qualifying reason, regardless of whether the employee is teleworking or working on-site. Intermittent leave occurs when the employee takes leave in separate blocks of time due to a single qualifying reason. For an employee working on-site, many of the qualifying reasons for EPSL leave will not lend themselves to intermittent leave because they create a high risk of spreading the virus. Of note, the revised regulations clarify that the employer-approval requirement does not apply to employees who take FFCRA leave in full-day increments to care for children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave is not intermittent. In that scenario, where a school is physically closed to the employee’s child on particular days, each day of the school closure constitutes a separate reason for FFCRA leave. Thus, the employee may take leave due to the school closure until that qualifying reason ends (i.e. the school re-opens) and then take leave again when the new qualifying reason begins (i.e. the school closes again) – without the approval of the employer.
  • The definition of a “health care provider,” who may be exempted from FFCRA’s leave provisions, includes only those who meet the definition of that term under the FMLA regulations and those who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees must provide required documentation to support FFCRA leaves to their employers as soon as practicable, but they need not provide it prior to taking PSL or EFML. Similarly, an employee must provide advance notice of EFML as soon as practicable. If the need for that leave is foreseeable, the employee should provide notice before taking the leave.

Your partners at Lake Effect HR & Law are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Agencies Update Guidance on COVID-Related Issues as Employees Return to Work

OSHA and the US Department of Labor provide additional guidance on employee health screening information and FFCRA leaves

As more employers resume onsite operations and welcome employees back to the workplace, OSHA continues to update its Guidance on Returning to Work. New guidance highlights potential document retention obligations for employers that record employee health screenings and/or temperature checks related to COVID-19 symptoms. OSHA specifies that if an employer creates records relating to those screenings, the records might qualify as medical records under the Access to Employee Exposure and Medical Records Standard (29 C.F.R. 1910.1020). Under this standard, the employer is required to retain an “employee medical record” for the duration of the worker’s employment plus 30 years. Notably, however, records of these activities will not constitute a covered “employee medical record” for purposes of OSHA’s record retention requirement unless they are records “concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician.” Furthermore, employers are not required to make a record of health screening responses and/or temperature checks. Employers can choose to simply receive the information in real time, make a decision, and not even create a record of the results. That may be the best practice for employers, given the current uncertainty in this area.

The Department of Labor’s Wage and Hour Division also issued a new Field Assistance Bulletin that addresses the rights and obligations of employees who request FFCRA leaves to care for children this summer. FFCRA requires employers to provide eligible employees with up to 12 weeks of expanded family and medical leave if the employee is unable to work or telework because they need to care for a child whose “place of care” is closed for reasons relating to COVID-19. The bulletin specifies that for purposes of FFCRA, “place of care” includes summer camps, summer enrichment programs, and summer school. Thus, an employee may request the expanded family and medical leave due to such closures and the resulting need to care for a child. However, that employee must support the request, either orally in writing, by providing the employer with:

  • an explanation of the need for the leave,
  • the name of the child,
  • the name of the specific summer camp or program that the child would have attended had it not closed, and
  • a statement that no other suitable person is available to care for the child.

Notably, the employee must also provide some evidence of a plan for the employee’s child to attend the summer camp or program (i.e. prior attendance, submission of an application or a deposit, or some other evidence of an intent to enroll). Recall under prior IRS guidance, parental care is primarily limited to children under age 14, unless the child is older and has certain condition/s that require enhanced care.

If your organization conducts health screenings as part of COVID-19 prevention efforts, or if you have any questions about employee eligibility for FFCRA leaves, contact your HR and employment law partners at Lake Effect. We can help guide you through this rapidly evolving legal landscape. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Ends Temporary Non-Enforcement of New Paid Leave Protections

As of April 21, 2020, covered employers (with fewer than 500 employees) across the country must be in full compliance with the paid leave provisions of the Families First Coronavirus Response Act (FFCRA), which became effective April 1, 2020. On April 20, the U.S. Department of Labor announced the end of the temporary period of non-enforcement, which was intended to allow employers time to understand and come into compliance with the new Emergency Paid Sick Leave and Emergency Family Medical Leave laws.

Moving forward, full compliance with FFCRA will be expected. Moreover, proper documentation and administration of the new Emergency Paid Sick Leaves and Emergency Family Medical Leaves will be critical to receiving payroll tax credits for the sick leave wages provided to employees under the new law.

If you have any questions or need assistance administering the new FFCRA paid leave laws, the attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Issues Temporary Rule Regarding Paid Leaves Available Under FFCRA

On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted a Rule (to be final when published on 4/6/20) issuing regulations under the Families First Coronavirus Response Act (“FFCRA”). The regulations provide further clarity as to how the leave provisions of the Expanded Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will be implemented. Key provisions include:

Department of Labor Issues Additional Guidance on FFCRA

On Saturday, March 28, 2020, the Department of Labor released additional guidance on the Families First Coronavirus Response Act (FFCRA), related specifically to the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA). We summarized key provisions offering new guidance.

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