Department of Labor Updates FFCRA Guidance to Reflect Changes in Federal Court Case

Thursday, September 17, 2020
Michael Bivona
Family Hugging (2)

The United States Department of Labor has recently updated Families First Coronavirus Response Act (FFCRA) rules to comply with various alterations to the law mandated by a recent court ruling in New York state. For more information about this case and the provisions of the FFCRA it invalidated, click HERE.

The new FFCRA regulations contain the following changes/clarifications:


- The FFCRA leave (both the emergency leave and the FMLA extension) only applies to an employee if there is work available for that employee at the time that leave is taken. However, an employer may not deny leave to an employee knowingly or purposefully under a pretext that there is no work available for them. In this manner, it is treated in the same way as an anti-retaliation provision.


- Intermittent leave under the FFCRA must have employer approval. The DOL explains that, in the absence of Congressional language on intermittent leave, the DOL has broad interpretive powers in this regard. The DOL has chosen to interpret this law consistent with the intermittent leave provisions of the FMLA, as part of the FFCRA leave is modeled on it.


 The definition of healthcare provider has been amended to include only the following classes of individuals:


A. Those involved in the provision of diagnostic, preventative, or treatment services;

B. Services integrated with and necessary for the provision of patient care.

C. All other individuals designated as “healthcare providers” under the FMLA


- Creates a concrete timeline for notice and documentation provisions. Documentation must be given to employers “as soon as practicable”, which will line up in most circumstances with the giving of notice.


The DOL has released these changes and clarifications to ease the administrative burdens on employers and to give employees more precise instructions on the specifics of their FFCRA leave. Employers should understand the changes and (where applicable) amend their leave policies in response to this new guidance. You can read the entire DOL clarification statement HERE.