ATTENTION EMPLOYERS: DOL Revises and Reaffirms Portions of Its Final Rule on FFCRA in Response to New York v. Scalia

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On September 11, 2020, the Department of Labor (“DOL”) announced that it had revised its Final Rule on the Families First Coronavirus Response Act (“FFCRA”) in response to the Southern District of New York’s August 3, 2020 decision in New York v. Scalia, which stemmed from the State of New York’s lawsuit challenging certain provisions of the DOL’s Final Rule first issued on April 1, 2020.

The revised Final Rule will go into effect on September 16, 2020 and, as explained below, has the greatest impact on employers in the health care industry.

The DOL’s revised Final Rule:

  • Reaffirms that an employer must have work available for the employee, in order for the employee to be eligible for FFCRA leave benefits (rejecting the Scalia opinion);
  • Reaffirms the requirement that employees must first seek employer approval to take intermittent FFCRA leave (rejecting the Scalia opinion);
  • Acknowledges the overbroad definition of “heath care provider” for exclusion of FFCRA benefits and revises the definition of “health care provider” to include employees who meet the definition of that term under the FMLA regulations or who are employers that 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 the need for FFCRA leave as soon as practicable; and
  • Corrects an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The revised Final Rule can be found HERE.  Health care employers should pay particular attention to the Rule’s new guidance relating to which employees can now be excluded from FFCRA coverage.

The DOL has also updated its Frequently Asked Questions, which can be found HERE.

Employers should follow the revised Final Rule, but of course, be mindful that additional legal challenges may continue while FFCRA is in effect (currently through December 31, 2020).

If you have any questions relating to this eAlert, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney you typically work with or call us directly.


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