On August 4, 2020, we published a blog titled FFCRA Rules Struck Down. Since publishing that post, the U.S. Department of Labor (DOL) has updated its guidance regarding some of the contested issues including advance notice requirements, intermittent leave, and the definition of a “healthcare provider” under the FFCRA.
Under the prior guidance an employee was expected to provide documentation supporting the need for FFCRA leave in advance. Given the potential reasons for leave, workers did not always have the ability to provide advance notice (such as an unexpected school closure). The new guidance now states that documentation should be provided “as soon as practicable.”
The DOL has also clarified when an employer may require approval for Intermittent leave under the emergency FMLA provisions of the FFCRA. Employers may make determinations on a case-by-case basis depending upon job duties and business needs. Intermittent leave may be denied where it would cause a hardship. The court was largely against all restrictions on intermittent leave, but the DOL appears to be allowing some restrictions.
Finally, the DOL has revised its definition of a “healthcare provider” under the FFCRA. The NY court found the original definition to be overly broad, which could include cafeteria workers and office staff of hospitals and medical practices. These individuals no longer automatically fall under that definition and may now be eligible for leave benefits. The narrower definition only covers individuals who provide diagnostic, preventative and treatment services, or other services necessary for patient care.
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