U.S. Department of Labor Revises Regulations Implementing the FFCRA

On September 11, 2020, the U.S. Department of Labor (“DOL”) issued updated regulations related to the Families First Coronavirus Response Act (“FFCRA”) in response to a decision from a federal court in New York that vacated certain provisions of the DOL’s regulations from April 2020.  These regulations implement the Expanded Family and Medical Leave Expansion Action (EPFMEA) and the Emergency Paid Sick Leave Act (EPSLA).

The regulations clarified specific aspects of the law in a few important ways that are relevant to school districts.

First, the regulations confirmed that an employee can only take EPFMEA and EPSLA “if the employee has work from which to take leave.”  This applies to all FFCRA-qualifying reasons for leave.  Accordingly, if an employer closes a worksite, the employee cannot take leave even if the employee has a qualifying reason.

The regulations also reaffirmed that it is permissible to take EPFMEA or EPSLA leave intermittently, but only with employer consent.  While the DOL clarified the general rule for intermittent leave, it also effectively redefined leave taken when an employee’s child’s school is on a hybrid schedule.  The DOL stated that when an employee’s child’s school offers in-person instruction on certain days each week and remote instruction on other days, the employee can take leave on the days of remote instruction without obtaining employer consent.  The DOL determined that each day the school only offers remote instruction is a separate qualifying reason for leave under the FFCRA (i.e., the school closes and reopens each time it goes from remote back to in-person).  Therefore, such leave is not taken “intermittently” (thus requiring employer consent) but is instead taken for separate (although repeating) qualifying reasons.  Further, if in-person instruction is available to an employee’s child, but the employee chooses not to send his or her child, the employee does not qualify for FFCRA leave.

The DOL also clarified that the documentation demonstrating that an employee qualifies for leave must be given to the employer “as soon as practicable” rather than “prior to” taking the leave, as was stated in the prior regulations.