Home Health & Hospice Week

Pay attention to new rule’s provision on leave related to hybrid school schedules.

A new Department of Labor regulation addresses other sections of FFCRA invalidated by the New York federal court.

The DOL Wage and Hour Division spends a good portion of the 15-page rule revising its “health care provider” definition for Families First Coronavirus Response Act leave purposes (see story, p. 282), but it also takes on these pressing topics:

Intermittent leave. “Employer approval is … an appropriate condition for taking FFCRA leave intermittently to care for a child, whether the employee is reporting to the worksite or teleworking,” WHD says in the rule published in the Sept. 16 Federal Register. But “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.”

Why? “In an alternate day or other hybrid-attendance schedule implemented due to COVID–19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee,” the rule explains. “For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”

“All covered employers should consider the potential implications of the DOL’s discussion” on this topic, urges attorney Elizabeth Stock with law firm Bricker & Eckler in Cincinnati.

• Work availability. The rule “reaffirm[s] and provide[s] additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them,” the DOL says in a release about the regulation.

The New York federal court’s “decision to strike down the work availability requirement stood in contrast to long-standing [Family Medical Leave Act] regulations, which make clear that periods of time when an employee would not otherwise be expected to work do not count against an employee’s FMLA leave entitlement,” points out attorney Jeff Nowak with law firm Littler in Chicago.

“‘Leave’ is most simply and clearly understood as an authorized absence from work,” the rule explains. “If an employee is not expected or required to work, he or she is not taking leave.”

• Leave documentation timing. The temporary rule clarifies “that employees must provide required documen­tation supporting their need for FFCRA leave to their employers as soon as practicable,” the DOL says.

That’s in contrast to the previous rule, which required the documentation “prior to” taking the leave, point out attorneys Sami Asaad and Rachel Ziokowski Ullrich with Ford Harrison in online analysis.

But providing notice “as soon as practicable … will generally mean providing notice before taking leave” if the need is foreseeable, the rule points out.

Note: More information about the temporary rule is at www.dol.gov/agencies/whd/ffcra.