DOL Issues Revised FFCRA Regs

Bryan Little,
Sep 21, 2020 | Employment

In response to an early August ruling from a federal judge in a lawsuit brought by the state government of New York, the U.S. Department of Labor issued revised regulations implementing the Families First Coronavirus Response Act (FFCRA) emergency paid sick leave and expanded Family and Medical Leave Act (FMLA) leave.  That judge’s ruling found certain provisions of DOL’s April FFCRA regulations invalid because it unlawfully denied leave to certain employees and exceeded the statutory authority granted to the Secretary of Labor to implement FFCRA emergency paid sick leave and expanded Family and Medical Leave.

The New York federal court struck down three provisions that are of possible interest to ag employers.  Those three issues are the “work availability requirement,” the requirement that an employee must obtain the employer’s consent to take FFCRA leave intermittently, and the requirement that employees must provide the employer with notice and documentation before taking leave (rather than after beginning the leave).

DOL’s revised regulations, effective September 16, reaffirm that emergency paid sick leave and expanded FMLA leave can only be taken if the employer has work available from which the employee can take leave, reasoning:

In the FFCRA context, if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.

DOL also offers rationale for supporting a requirement that intermittent leave can only be taken with employer consent in order to serve the long-standing idea that FMLA leave in general can’t be taken in a manner that unduly disrupts the employers’ operations, but DOL conceded to the court’s position that documentation of need for leave must be provided, “as soon as practicable, which in most cases will be when the employee provides notice” of the need for leave.

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