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DOL Issues New Rule Interpreting the FFCRA

September 17, 2020

The Department of Labor (“DOL”) recently released another interpretation of the Families First Coronavirus Response Act (“FFCRA”).  This new rule was passed in response to an August federal court ruling that invalidated parts of the existing DOL interpretation (summarized here).  In its most recent guidance, the DOL revised certain positions and reaffirmed others in response to the August decision.  The new rule takes effect on September 16, 2020.

The first issue addressed in the new rule concerns the exclusion of “health care providers” from leave benefits.  The FFCRA defined a “health care provider” as “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”

In the August decision, the court held that the DOL’s first rule impermissibly went beyond this definition, including English professors, librarians, and cafeteria managers at a university with a medical school.  In its guidance addressing the court decision, the DOL narrowed the category of exempted health workers to physicians, others who make medical diagnoses, and those who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

The August court ruling also set aside the parts of the DOL’s first rule that permitted employers to deny leave to an employee if there was no available work, mandated an employee get consent from their employer before taking intermittent leave, and required documentation from the employee before going on leave.  The new DOL rule restates its positions on the first two issues, regardless of the August opinion.  As to the documentation requirement, the DOL revised its guidance to provide that employees now need only provide documentation as soon as practicable, instead of before going on leave. 

Guidance on this issue is complex and changing rapidly.  If you have any questions about this or any other workforce issue, please do not hesitate to contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.