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On September 11, 2020, the U.S. Department of Labor issued revised regulations under the Families First Coronavirus Response Act (FFCRA) in response to a federal court’s decision that found certain FFCRA regulations to be invalid. The revised regulations take effect September 16, 2020.
On August 3, 2020, a federal court in New York struck down four parts of the FFCRA regulations, finding that they were invalid:
In light of the federal court’s opinion, the DOL issued its revised regulations to reaffirm some of its original positions and, at the same time, make changes in accordance with the federal court’s decision. The DOL in its revised regulations, effective September 16, 2020:
The DOL also discussed the administration of FFCRA leave when an employee’s child participates in hybrid learning in which the schools operate on alternating scheduling. The DOL explained that “[e]ach day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” Accordingly, the DOL explained that intermittent leave is not necessary because “the school literally closes…and opens repeatedly.” According to the DOL, a full single day of leave is not considered intermittent leave and the employee does not need the employer’s consent to take off Monday, Wednesday, and Friday because each of these days are separate school closure, thereby each entitling the employee to leave under the FFCRA.
The revised regulations also identify employees who are not “health care providers”, including: information technology professional, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. The DOL explained that their services are too attenuated to be integrated and necessary components of patient care.
Given that events related to the COVID-19 pandemic are rapidly evolving, we will continue to monitor the FFCRA and any subsequent legislation and regulations as they become available. Currently, the FFCRA is set to expire on December 31, 2020. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.
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