As we reported in our e-mail dated August 13, 2020, the Southern District of New York recently invalidated certain portions of the regulation interpreting the Families First Coronavirus Response Act (“FFCRA”) – at least for employers within that court’s jurisdiction.  In response to the court’s decision, the United States Department of Labor (“DOL”) issued revised FFCRA regulations on September 11, 2020, applicable nationwide.  The DOL’s revised regulations became effective on September 16, 2020.  Below is an overview of the key changes to the revised regulations.

Work Availability Requirement:

The DOL clarified that an employee is not eligible for FFCRA leave unless the employer has work available for the employee.  In particular, the DOL stated, “If there is no work for an individual to perform due to circumstances other than a qualifying reason for leave…, that individual would have not work from which to take leave.”  Moreover, the DOL specified that the qualifying reason for paid sick leave or expanded family and medical leave must be a “but-for” cause of the employee’s inability to work.  In other words, the DOL reaffirmed its position that an employer must have work available for an employee in order for the employee to qualify for FFCRA leave.

Intermittent Leave:

As the DOL has previously asserted, intermittent FFCRA leave is only available with the employer’s consent.  The DOL reasoned that FFCRA leave obligations should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.”  Based on this justification, the DOL decided that employer consent is still required for intermittent FFCRA leave.

Even though the DOL did not change the fundamental nature of the intermittent leave rule, the DOL did emphasize that the employer-approval condition would not apply to employees taking FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day schedule, because such leave “would not be intermittent.”  The regulation states that each day of closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.  Under the DOL’s interpretation, intermittent leave is not needed when schools operate on an alternate day schedule “because the school literally closes…and opens repeatedly.”  Thus, it is important that employers recognize that employer consent is not needed for FFCRA leave in this or other similar scenarios.

Notice Requirements:

The DOL clarified that paid sick leave and/or emergency FMLA leave documentation does not need to be provided by the employee before taking leave in every instance.  Instead, the employee can provide the documentation “as soon as practicable,” which, in most cases, will be when the employee knows of the need for the leave accommodation.   As noted by the DOL, advanced notice is “typically required if the need for leave is foreseeable.”  For example, if an employee knows that the employee’s child’s school will be closed on a future date, then the employee is likely required to notify the employer prior to the foreseeable leave.  The DOL’s revised notice requirement is beneficial to employers because it provides employers with advanced notice of leave in most situations.

Health Care Provider:

Under the FFCRA, employers have the option to exclude “health care providers” from Emergency Family and Medica Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) leave.  Due to confusion surrounding the “health care provider” definition, the DOL created a new definition in its revised regulations.  As such, the new DOL definition of “health care provider” includes employees that are either: (1) individuals who meet the definition of “health care provider” under current Family and Medical Leave Act (“FMLA”) regulations; or (2) are “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”  Importantly, under the FMLA, a “health care provider” is defined as a “doctor of medicine or osteopathy” and “[a]ny other person determined … to be capable of providing health care services.”  Thus, the DOL’s new definition of “health care provider” is broad enough to encompasses many employees within the health care system, while being narrow enough to exclude employees that are not traditionally considered health care employees.

Due to the DOL’s somewhat confusing definition of “health care provider,” the DOL listed specific employees that may be excluded from FFCRA leave.  The following list outlines the categories of employees who may be excluded from FFRCA leave:

  • Doctors of medicine or osteopathy;
  • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors;
  • Nurse practitioners, nurse-midwives, clinical social workers, and physician assistants;
  • Nurses, nurse assistants, medical technicians, and others who directly provide diagnostic preventive, treatment, or integrated services;
  • Certain Christian Science practitioners;
  • Employees providing diagnostic, preventive, treatment, or integrated services under the supervision, order, or direction of, or providing direct assistance to “health care providers;” and
  • Employees who are otherwise integrated into and necessary to the provision of health care services.

The DOL’s revised regulations also provide examples of employees who are not excluded from FFCRA leave.  IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not excluded from FFCRA leave “even if their services could affect the provision of health care services.”

Next Steps:

Employers must follow the DOL’s revised FFCRA leave regulations. The following links provide additional information regarding the revised FFCRA leave:

  • Revised FFCRA F&Qs:


For advice and consultation on how to comply with FFCRA leave requirements, or any employee specific leave requirement matter, employers are strongly encouraged to contact the labor and employment attorneys at Masud Labor Law Group.