FFCRA Clarifications

September 21, 2020

Early last month, a federal court in New York invalidated a handful of regulatory provisions interpreting the FFCRA (if you need a quick refresher, check out this blog I wrote in August). I have been keeping an eye on this so I could let you all know how, if at all, this affects you. Well, late last week the Department of Labor issued revised regulations in response.

Last night I slogged through all of those regulations, which the DOL covered in tremendous legal detail, which they need to. Fortunately for you guys, I aced Legal Speak 101: How to Say Things in as Many Words as Possible. I also aced Legal Speak 102: How to Break It Down for Everyone Else. So here it is!

Honestly, I can sum up a lot of it just by saying what I say to my kids a little too often, “I meant what I said.” Basically, the DOL clarified what they said originally, so the following provisions remain in place:

  • Employees can only take FFCRA leave if work is available to them. So, if your business has closed its doors temporarily or if your employee has been furloughed due to lack of work, they are not eligible for FFCRA.
  • Employees must have employer’s permission to take intermittent FFCRA leave. One important note is that employer approval is NOT required if intermittent leave is due to school closures, such as in a hybrid learning plan where the employee requires leave only two or three days a week.
  • Employees must provide documentation supporting their leave as soon as possible.

The only thing that did change slightly in the revised regulations is the definition of “Health Care Provider.” This was expanded to include individuals who provide “services that are integrated with and necessary to diagnostic, preventative, or treatment services and, if not provided, would adversely affect patient care. For example, someone who drives samples from a site to a lab for testing is necessary for diagnostic care and thus considered a health care provider under this definition.

If you have any questions about this, I am always here for you! And here is a link to some FAQs on the DOL website. Oh, and if you are having trouble sleeping tonight, here is a link to the revised regulations in all of their glory. I can almost promise you will be asleep before you get to the second point. As always, I will provide clear information on anything new small business related on Facebook and Instagram, so be sure to follow me and like my page!

IMPORTANT DISCLAIMERS:
1. The information above does not constitute legal advice, nor does it create an attorney-client relationship. Please consult your attorney with specific questions.
2. As this situation is constantly changing, we will make every effort to stay current on this topic, however this information is provided as general guidance and may not apply to your situation, nor should it be relied upon exclusively. Please consult and confirm with your attorney if you have questions about these updates or their applicability.  
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