DOL’s Revised Paid Leave Regulations Go into Effect

Originally published by: McAfee & TaftSeptember 25, 2020

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The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued revised regulations to the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of a recent U.S. District Court decision that found portions of the regulations invalid. The new regulations went into effect on Wednesday, September 16.

The revisions do the following:

  • Reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave. It clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
  • Reaffirms and provides additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
  • Revises the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarifies that employees must provide required documentation supporting their need for FFCRA leave to their employers “as soon as practicable,” rather than “prior to” taking paid sick or family leave.
  • Clarifies that advanced notice of expanded family and medical leave is required “as soon as practicable.” If the need for leave is foreseeable, that will generally mean providing notice before taking leave. For example, if an employee learns on Monday morning before work that his or her child’s school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

 

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