In early August, a federal district court in New York issued a ruling striking down several important provisions in the regulations to the Families First Coronavirus Response Act (“FFCRA”). In response, on Friday, September 11, the U.S. Department of Labor (“DOL”) issued updated regulations. The new regulations took effect on Wednesday, September 16, 2020. In summary, the new rules revise or clarify four aspects of the regulations: 1) intermittent leave; 2)
timing of notice and documentation for leave; 3) the definition of “health care provider”; and 4) the “work availability” requirement.
The revisions with the greatest potential impact on school districts are a subtle clarification on intermittent leave and a revision to notice and documentation requirements.
Changes to Intermittent Leave rules under the FFCRA
The old regulations required that an employer approve an employee’s request to use FFCRA leave intermittently.
While those provisions remain the same in the revised regulations, the DOL did clarify that in some circumstances, an employee may use leave on alternating days without the need for employer approval.
The DOL provides an example: if an employee’s son or daughter is participating a school’s hybrid learning program, and only attends on-campus classes every other day, the employee would be eligible for leave on days when the student is learning remotely. The same holds for other hybrid learning schedules, (e.g., attending for a half-day, or every other week). In other words, eligible employees may use FFCRA leave for those periods when their child is not
attending on-campus classes (or going to childcare) without seeking district approval to use intermittent leave, because each day (or other period) of closure is considered an independent use of FFCRA leave.
In contrast, if a student’s school shifts to entirely remote learning (e.g., in response to an outbreak of COVID-19) and an employee requests to telework part-time while their student is at learning at home, the employee still needs district approval for such an intermittent schedule. As was the case previously, employees who choose to have their children learn remotely rather than attend on-campus classes are not eligible for FFCRA leave, because the reason
for leave is the employee’s decision to select remote learning, rather than closure of the school.
Changes to Notice and Documentation rules under the FFCRA
The old FFCRA regulations required an employee to provide notice and any necessary documentation (e.g., the name of a health care provider, or a school closure notice) prior to taking leave.
The revised DOL regulations require documentation as soon as is practicable, the same standard used under ‘traditional’ FMLA. In practice, this means that in situations where an employee may have an immediate need for leave (for example, where a child’s school closes suddenly in response to an outbreak), the district should not require documentation prior to granting leave, but can expect the employee to provide documentation as soon as he or she
reasonably can after the leave begins.
As was the case previously, where an employee’s need for leave is foreseeable (as with, e.g., a hybrid learning schedule), the employee should provide documentation prior to taking leave.
The revised regulations also narrowed the definition of “health care provider”, though the new definition still includes nurses and any other healthcare professionals employed by a school district. The regulations also reaffirmed the requirement that a school district have work available for an employee (i.e., the employee is not furloughed or laid off) for the employee to be eligible for FFCRA leave.
Keep in mind that unless the law is extended, the FFCRA is set to expire after December 31, 2020.
The following is a link to the complete revised regulations: Click Here
Please note: Managing leaves and absences under the FFCRA will be one topic at the firm’s upcoming Personnel Services Symposium at Region 2 Education Service Center on October 6, 2020. Further information about the Symposium, including registration information, may be found the following link: Click Here
