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Department of Labor’s Temporary Rule: Paid Leave Under the Families First Coronavirus Response Act



On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), a temporary rule which took effect April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by the Coronavirus. In addition to other provisions, the FFCRA contains two (2) acts that require qualifying employers to provide certain employees with temporary paid time off for reasons related to the Coronavirus. These are the Emergency Family and Medical Leave Expansion Act (“EFMLAEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Recently, the Department of Labor (“DOL”) made revisions to the FFCRA.

April 2020 Lawsuit over the Temporary Rule

On April 14, 2020, the State of New York filed a lawsuit in the United States District Court for the Southern District of New York challenging certain parts of the FFCRA. On August 3, 2020, the United States District Court for the Southern District of New York invalidated the challenged portions of the FFCRA. The court ruled four parts of the FFCRA invalid: (1) the requirement that, under the EPSLA and EFMLAEA, leave was only available if the employee had actual work from which to take leave; (2) the requirement that employees were only permitted to take FFCRA leave intermittently with employer approval; (3) the definition of a “health care provider” employee; and (4) that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.

DOL’s September 11, 2020 Revisions to the Temporary Rule

In response to the court’s order, on September 11, 2020, the Department of Labor (“DOL”) reviewed the FFCRA and the portions the New York court invalidated. The DOL reaffirmed, revised, and further explained the provisions invalidated by the New York court. The DOL reaffirmed that FFCRA leave may only be taken if there is actual work from which to take leave and further explained why this requirement is necessary.

The DOL revised the definition of “health care provider” to mean employees who are health care providers and 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.” The DOL also expanded the notice rule. Employees must give their employers the required information to support taking FFCRA leave as soon as practicable. Lastly, the DOL revised the FFCRA to correct an inconsistency regarding when an employee may be required to give notice of expanded FMLA leave to his or her employer. These revised rules took effect on September 16, 2020.

If you feel your rights under the FFCRA have been violated, you believe your employer is violating required health and safety measures, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you

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