On September 11, 2020, the Department of Labor (DOL) posted revised regulations for the Families First Coronavirus Response Act (FFCRA). These revisions are in response to the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the regulations invalid. These revisions will go into effect immediately upon publication in the Federal Register. It is scheduled to be published on September 16, 2020.

As such, POOL/PACT HR updated the “Families First Coronavirus Response Act: Questions and Answers” with these revisions, as well as the latest guidance released from the EEOC.  The Q&A and the tracking version of the document are available in the “COVID-19 POOL/PACT HR RESOURCES” folder in the HR Resources Library at www.poolpact.com to registered users.

The following policies and forms were also updated to reflect these revisions:

• Sample Emergency Family and Medical Leave Policy
• Sample EFMLEA Notice of Eligibility and Rights and Responsibilities
• Sample EFMLEA Designation Notice
• Sample Emergency Paid Sick Leave Policy
• Sample Emergency Paid Sick Leave Application Form

The sample policies are available as standalone as well as part of our sample large, smalls, and school personnel policies.  All policies and forms can be access at www.poolpact.com as follows: standalone polices and forms are located in the “COVID-19 Sample Policies and Forms” folder; the versions integrated in our sample personnel policy manuals are accessible in the “Personnel Policies” folder under Types.

Our Q&A and sample policies/forms incorporate the following revisions set forth in the new FFCRA regulations:

• Revised definition of "health care providers".  The prior rule broadly defined "healthcare provider" as “anyone employed at” specific health care facilities (e.g., hospitals, retirement facilities, laboratories, pharmacies).  The new definition is limited to individuals who are "employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care."
• Reaffirmed the requirement that employees and employers must agree to take FFCRA on an intermittent basis. 
• Clarified that hybrid learning models in which schools are open for in-person learning on certain days of the week but offer only distance learning on other days, is not intermittent leave. Rather, each day of school closure "constitutes a separate reason for FFCRA leave that ends when the school opens the next day."
• Clarified that supporting documentation from the employee need not be provided before taking leave, but only as soon as practicable.
• Reaffirmed the work-availability rule, which states that FFCRA leave is not available if an employer does not have work for the employee (e.g., the employee has been furloughed or laid off).

As always, please contact your POOL/PACT HR Business Partner with any questions you may have.