U.S. Department of Labor clarifies paid leave requirements under Coronavirus Response Act

WASHINGTON, D.C. – The U.S. Department of Labor’s Wage and Hour Division (WHD) has posted revisions to regulations that implemented 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 the U.S. District Court for the Southern District of New York in an Aug. 3, 2020, decision that found portions of the regulations invalid.

The revisions do the following:

• Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
• Revise 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.
• Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
• Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

“As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever,” said Wage and Hour Administrator Cheryl Stanton. “Today’s updates respond to this evolving situation and address some of the challenges the American workforce faces. Our continuing robust response to this pandemic balances support for workers and employers alike, and remains our priority.”

The Department issued its initial temporary rule implementing provisions under the FFCRA on April 1, 2020. Read the revisions to that temporary rule, which will become effective Sept. 16, 2020 in the Federal Register.

The FFCRA helps the U.S. combat and defeat the workplace effects of the coronavirus by giving tax credits to American businesses with fewer than 500 employees to provide employees with paid leave for certain reasons related to the coronavirus. Please visit WHD’s “Quick Benefits Tips” for information about how much leave workers may qualify to use, and the wages employers must pay. The law enables employers to provide paid leave reimbursed by tax credits, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.

WHD continues to provide updated information on its website and through extensive outreach efforts to ensure that workers and employers have the information they need about the benefits and protections of the FFCRA. The agency also provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and on job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic.