COVID-19 Legal FAQ Update – FFCRA Updates

Memorandum

From:  CEA Legal Center

Date: September 18, 2020

RE: COVID-19 LEGAL FAQ Update – FFCRA Updates


This memorandum serves as a guidance to frequently asked questions presented to the CEA Legal team regarding how to respond to the unprecedented epidemic sweeping our nation. The FAQ’s will be updated as we address questions from the field. Please be patient and understand that these circumstances present new and uncharted areas of law. CEA Legal will provide the best advice it can based on its understanding of current law however, the law is unclear in many areas.

QUESTION: Have there been any recent changes to the FFCRA?

ANSWER: The Family First Coronavirus Response Act (FFCRA) was enacted to provide paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Since its initial enactment, there have been recent changes and clarifications that are relevant to school closures.

In late August 2020, as children across the country started a new school year, the DOL issued three new FAQ’s around the reality of school closures.

  1. The DOL confirmed in FAQ #98 that an employee will be eligible for paid leave on an intermittent basis to accommodate a hybrid school schedule. For purpose of the FFCRA,
    the school is effectively closed on days the child cannot attend in person and leave is available on remote learning days.
  2. FAQ #99 emphasizes that FFCRA leave is not available to take care of a child whose school is actually open for in-person attendance. For example, if a family chooses virtual over in-person school when that option is available, the employee is not eligible for leave. However, if a child is home due to a quarantine order or advice of a health care provider, the employee may be eligible for the paid leave.
  3. FAQ #100 clarifies that leave eligibly will change as schools adopt different teaching models. If schools start virtually, the employee is eligible during remote learning for so long as the school remains closed, but eligibility for leave will end if/when the school returns to in-person instruction.

Additionally, in light of recent litigation in New York that left some portions of the FFCRA invalidated, the DOL has issued revisions and clarifications regarding several portions of the FFCRA. These changes are effective September 16, 2020.

  1. The DOL reaffirms that paid sick leave and expanded family and medical leave may only be taken if the employee has work from which to take leave.
  2. Rule reaffirms that employees must have employer approval to take FFCRA leave intermittently. However, the rule creates a work-around for the employer-approval requirement to parents whose children are in schools with hybrid models by deciding that this does not really constitute “intermittent” leave: “The 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 § 826.50.”
  3. “Healthcare provider” definition revised to include only employees who meet that term under FMLA or are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated and necessary to the provision of patient care which, if not provided, would adversely impact patient care. This definition is relevant to an optional exclusion of employees who are healthcare providers from FFCRA leave. If school nurses encounter exclusions under this definition, please contact your Uniserv Director for further analysis.
  4. Employees must provide required documentation supporting the need for FFCRA to their employers as soon as practicable.
  5. Rule revisions clarify that the FFCRA amends the FMLA to require employees taking expanded family and medical leave to provide their employers with notice of leave as soon as practicable, when the necessity for such leave is foreseeable. This will typically mean providing notice before taking leave, but there may be situations of leave without giving prior notice but the employee must still give notice as soon as practicable.