Updated: U.S. Department of Labor’s Wage and Hour Division Issues Additional Guidance on Leave Provisions of the Families First Coronavirus Response Act: Part IV

September 17, 2020
September 17, 2020 Update. On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule. The revised Rule: (i) affirmed that FFCRA leave may only be taken if the employee has work from which to take leave; (ii) affirmed that, where intermittent FFCRA leave is permitted, an employee must obtain employer approval; (iii) revised the definition of “health care provider” to be consistent with the Family and Medical Leave Act (“FMLA”); (iv) clarified that an employee should provide to its employer information supporting his or her need for leave as soon as practicable; and (v) corrected an inconsistency regarding when an employee may be required to give notice of his or her intention to take leave under the FFCRA. The revised Rule became effective upon publication. The below post has been updated to reflect these changes and our updated memorandum on the Rule is available here.

On August 27, 2020, the DOL issued guidance on the FFCRA and school reopenings. The guidance outlined three scenarios that employees with school-aged children may encounter this fall, as outlined below.

The DOL continues to update and provide additional guidance in its Questions and Answers document, and, in addition to the below post, our other posts on the guidance are available here: Part I, Part II, Part III, and our July 21, 2020 post.
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  • Hybrid-Attendance. If a school is operating on a hybrid-attendance basis, such as alternate day in-person attendance, an employee is eligible to take paid leave under the FFCRA on days when the employee’s child is not permitted to attend school in person and must instead engage in remote learning. To be eligible, the employee must need the leave to actually care for the child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to the employee’s child on days that he or she cannot attend in person.
  • Option to Attend In-Person or Virtual. If a school provides the option to attend in person or participate in a remote learning program and the employee selected the remote learning program, the employee is not eligible for paid leave under the FFCRA because the child’s school is not “closed” due to COVID-19-related reasons. 
  • Remote Learning. If a school is beginning the school year with a remote learning program and has announced that it will continue to evaluate local circumstances, then an employee is eligible to take paid leave under the FFCRA while the child’s school is closed to in-person attendance.
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The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.

DOL Wages and Overtime