The U.S. Department of Labor has issued revised regulations in response to a ruling by the U.S. District Court for the Southern District of New York declaring that four parts of regulations interpreting the Families First Coronavirus Response Act were invalid. 

The court’s decision struck down the DOL’s rules regarding the requirement of employer consent for taking intermittent leave under the FFCRA as well as the work availability requirement, the documentation requirement prior to taking FFCRA leave, and the definition of a healthcare provider. 

The FFCRA is one of the measures taken by the U.S. Congress in response to the coronavirus epidemic. It generally requires employers to offer paid and unpaid emergency family leave to employees who are unable to work or telework due to a need for leave due to certain pandemic related reasons. 

The DOL’s new regulations reaffirm and further explain its positions on portions of its interpretations of the FFCRA and revise other parts of the regulations. 

Of particular importance to Connecticut employers as schools reopen (either in-person, remotely or under a hybrid model) is how the revised regulations deal with the requirement of employer consent for taking intermittent leave under the FFCRA. The regulations and their descriptions may cause confusion. 

Employer Consent

While the District Court invalidated the need for employer consent in circumstances where the employee needs to intermittently take leave care for a child whose school or place of care is closed or where child care is unavailable due to COVID-19 related reasons, DOL reaffirmed in its revised regulation that “where intermittent FFCRA leave is permitted by the Department’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently.”

DOL explains that in addition to other reasons for which employer approval would be necessary for an employee to take intermittent leave under the FFCRA, “[e]mployer approval is, also an appropriate condition for taking FFCRA leave intermittently to care for a child, whether the employee is working or teleworking.”

However, the DOL goes on to state in its description that, “[t]he 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 because such leave would not be intermittent under [guidance released in late August].”

This is because in the case of a hybrid-based or alternate day attendance learning model on days when the child is not permitted to attend the school in person the school is effectively closed to the employee’s child for purposes of the FFCRA.

Paid Leave Requirements 

DOL also reaffirmed that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave and clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.

In its new rules the DOL clarifies the information that the employee must give the employer to support the need for his or her need for leave and states that it should be provided to the employer as soon as practicable. 

The definition of healthcare provider also was revised.