Casner & Edwards

Client Alert: FFCRA Fall 2020 Update

By: Renee Inomata and Stéphanie Smith

With fall nearly upon us and with many starting the school year, employers need to be aware of changing rules and interpretations of the Families First Coronavirus Relief Act (FFCRA). We have summarized some of the key updates below.

New School-Related FFCRA FAQs

As schools re-open (whether virtually, in person, or in a “hybrid” model combining in-person and remote learning), employers are facing a new round of questions from workers regarding possible options for balancing work and family demands as a result of the COVID-19 pandemic. To help workers and employers navigate the next few months, the United States Department of Labor (DOL) has published new frequently asked questions (FAQs # 98-100) addressing employees’ eligibility for paid leave under the FFCRA related to back-to-school.

The new FAQs confirm that if a child’s school is operating entirely remotely or on a hybrid (alternate day) model, employees are eligible for paid FFCRA leave if the employee is unable to work (including telework) on days the child is attending school remotely. The DOL is effectively taking the position that a school is “closed” on days an employee’s child cannot attend in person, either because the school is entirely remote or has adopted a hybrid learning model. However, paid FFCRA leave is not available on days during which a child is attending school in person. 

Importantly, if a child’s school offered the choice between in-person instruction and remote learning, and the employee chose to have the child participate entirely remotely, the employee is not eligible for FFCRA leave for those days the child would have attended school in person. Again, the DOL’s view is that the child’s school is not “closed” due to COVID on those days the school is open but the employee chose to keep the child home. However, if the child has been advised by a health care provider to self-quarantine, the employee may be eligible for FFCRA leave to care for the child.

Updated FFCRA Regulations

The DOL has issued a Revised Rule for the Families First Coronavirus Relief Act (FFCRA), effective September 16, 2020. The Revised Rule responds to an August 2020 decision by a New York federal court in New York v. U.S. Dep’t of Labor, (S.D.N.Y. Aug. 3, 2020), finding that parts of the DOL’s April 2020 Interim Rule on the FFCRA were invalid. The New York court determined that the following four sections of the DOL’s April 2020 Interim Rule were invalid:

  1. In Section 826.20, Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) of the FFCRA are available only if the employee seeking leave has work from which to take leave.
  1. In Section 826.50, EPSLA and EFMLEA may only be taken on an intermittent basis with employer approval.
  1. In Section 826.30(c)(1), the definition of “health care provider” for the purposes of excluding employees from eligibility for EPSLA and EFMLEA.
  1. In Section 826.100, an employee taking EPSLA or EFMLEA leave must provide documentation to support such leave before taking the leave.
For the first two points, the Court’s determination that they were invalid was based on insufficient explanation by the DOL for its position. As a result, in the Revised Rule, the DOL did not materially change the Interim Rule, but rather provided greater clarification of the rationale for its rule. Thus, those sections remain the same.

For the last two points, the Court determined that the sections were inconsistent with the FFCRA, as enacted on March 18, 2020.  With respect to the definition of “health care provider,” after reviewing several other statutory and regulatory definitions of “health care provider” in similar laws, the DOL modified the definition in Section 826.30(c)(1)(i) to read as follows:

(A) Any Employee who is a health care provider under 29 CFR 825.102 and 825.125, or;

(B) Any other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

The Revised Rule provides further clarification by describing the types of employees who would be considered “health care providers” under the FFCRA, focusing more on the duties of the employee, rather than the business of the employer.

In Section 826.100, in its Revised Rule, the DOL clarified that the documentation supporting EPSLA or EFMLEA leave need not be provided prior to taking the leave, but must be provided “as soon as practicable.” The DOL also added that “as soon as practicable” would, in most cases mean when an employee gives the employer notice of the need for EPSLA or EFMLEA.

For most employers to whom the FFCRA applies, the Revised Rule likely does not change much. However, employers should be careful not to require employees to provide FFCRA-permitted information prior to starting FFCRA leaves. Also, employers who had been relying on the “health care provider” exception to the FFCRA should review the new definition to ensure that they are not improperly denying FFCRA leave to eligible employees.

Should you need assistance or have any questions concerning the FFCRA update, contact Renee Inomata at, Stéphanie Smith at, or your Casner & Edwards attorney.

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