On September 11, the U.S. Department of Labor issued a new temporary rule for the Families First Coronavirus Response Act (FFCRA). As we explained previously in EmployNews, a New York federal district court in August struck down the following portions of FFCRA regulations: (1) the work-availability requirement, (2) the “health care provider” exemption, (3) the requirement of employer consent for intermittent leave, and (4) the requirement of documentation prior to taking leave. The new temporary rule, which took effect Wednesday, reaffirms the work-availability requirement and requirement of employer consent for intermittent leave, adopts a new “health care provider” exemption, and clarifies the timing of documentation requirements.

First, the temporary rule reaffirms and provides additional explanation supporting the requirement that work must be available to employees for them to qualify for FFCRA leave. DOL reiterated that “an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.” DOL reasoned that “if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave – perhaps the employer closed the worksite (temporarily or permanently) – that qualifying reason could not be a but-for cause of the employee’s inability to work.”

Second, DOL reaffirmed that employees may not take intermittent leave under the FFCRA without employer consent. The agency reasoned that requiring employer consent for FFCRA leave due to school closure or the unavailability of child care is appropriate because under ordinary FMLA principles, intermittent leave should avoid “unduly disrupting the employer’s operations.” Requiring employer consent provides employers with greater control over their operations.

Third, DOL adopted a markedly different interpretation of the “health care provider” exemption. Whereas the original exemption applied to any individual employed by an entity that provides health care services, the temporary rule limits the exemption to only employees who are “capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The temporary rule also provides examples of covered employees, including physicians, nurses, nurse assistants, medical technicians, and laboratory technicians.

Fourth, DOL clarified that employees are only required to provide documentation supporting a request for leave “as soon as practicable” rather than “prior to” taking leave.