DOL issues new regulations regarding paid leave under FFCRA

By Joseph P. Kelly

It’s back to school time … or at least kind of. Many schools are operating remotely. Some schools, like those here in Geneva, are operating on a “hybrid” schedule. That means that many students from Kindergarten to High School are learning from home at least some of the time. To say that these new school arrangements have made it tough for working parents is an understatement!

You may recall that way back in the Spring–in part to alleviate pressure on working parents–passed the Families First Coronavirus Relief Act (FFCRA). We wrote about the FFCRA in prior alerts here, here, and here.

The FFCRA mandates that employers provide paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. One of the specified reasons for such leave is to care for a child whose school is closed due to COVID-19.

The Department of Labor recently issued revised regulations interpreting the FFCRA in response to a court decision in New York. The revised regulations which took effect on September 16 are here.

Here are some key takeaways:

  • Employers can’t require an employee submit documentation supporting their need for FFCRA leave before leave can be taken; an employee need only provide supporting documentation “as soon as practicable.”
  • An employee is only entitled to FFCRA is an employer has work available. If there’s no work–whether because of a furlough, closure of a business location, or otherwise–then an employer isn’t required to give paid leave.
  • Employees may take intermittent use of FFCRA leave upon employer approval. But the DOL clarified that the “employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis.” Per DOL, “[f]or the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

We all hope that there’s no longer a need for the FFCRA when it expires on December 31, 2020 but that seems unlikely. Perhaps it will be renewed at that point. Stay tuned!

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