The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain most significantly to the intermittent use of FFCRA and the applicability of FFCRA leave to employees of health care providers. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

Here’s what you need to know about the DOL’s new guidance:

Intermittent Use of FFCRA Leave. While the DOL “encourages employers and employees to collaborate to achieve flexibility,” the DOL says employers are not required to allow employees to use FFCRA leave intermittently. However, note that, according to the DOL, every day of school closure is a separate event for purposes of the FFCRA, so an employee who requests Tuesdays and Thursdays off because his or her child’s school is only physically closed those two days of the week must be allowed to use FFCRA leave on just those days. (Oregon employers should also note that Oregon Family Leave can be used intermittently, including for school and day care closures. (See here.))

Health Care Providers. The DOL narrowed the applicability of the FFCRA exemption for health care providers.  Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or 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.” This exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave).

Other guidance. The DOL also reaffirmed its position (contrary to the Southern District of New York case) that FFCRA leave is only available to employees if the employer would otherwise have work available for them and clarified that employees seeking to take FFCRA leave must provide documentation of their need for leave “as soon as practicable.”