Alert / Employee Benefits
DOL agrees (in part) with New York court decision on FFCRA

September 24, 2020

With lightning speed, the U.S. Department of Labor (DOL) amended its regulation under the Families First Coronavirus Response Act (FFCRA) in response to a recent decision of a federal court in New York striking certain aspects of the DOL’s earlier regulation. A summary of that federal court decision is outlined in our alert. Even though the DOL did not agree with court’s decision in its entirety, it has made several key changes and clarifications to conform its regulation to address most issues raised in that decision.

  • Lockton comment: As we noted in our earlier alert, the court’s opinion may be limited in its effect to New York employers/employees and we recommend working with counsel to determine its application. However, the DOL’s recent regulatory changes have national impact, and apply to all employers subject to FFCRA. 

The following briefly outlines the key issues, the new regulatory changes, and how the changes conform to the recent court decision:

Issue: What is the definition of “healthcare provider” for determining which employees may be denied leave under FFCRA?

  • DOL response: As described in more detail below, the DOL has significantly narrowed the regulation’s definition of “healthcare provider” for purposes of excluding certain workers from entitlement to leave under FFCRA. Previously, all employees supporting healthcare providers could be denied leave, but the DOL has limited the definition to include only those performing medically related services.
  • Relationship to New York court decision: The court opinion took issue with the earlier regulation’s broad definition of “healthcare provider.” It appears the DOL’s modified definition should satisfy the court’s concerns.

Issue: Can an employer require its consent to intermittent leave under FFCRA?

  • DOL response: The DOL has retained the requirement under its earlier regulation that the employer can require its consent to intermittent leave requested under FFCRA if the employee is teleworking or the request relates to caring for a child due to school closings or the unavailability of a child care provider due to COVID-19. However, as discussed below, the DOL’s defining leave as intermittent in relation to school closures has been clarified and significantly narrowed.
  • Relationship to New York court decision: The court decision concluded that intermittent leave – for reasons that will not heighten the potential risk of spreading COVID-19 – cannot be predicated upon employer consent. The DOL’s modified regulation remains somewhat inconsistent with the court decision.  However, employers should comply with the new DOL position that school closings are generally considered independent, rather than intermittent, leave events.

Issue: Can employers require documentation of eligibility for FFCRA leave prior to that leave?

  • DOL response: The DOL modified its earlier guidance that documentation of the reason for leave may be required prior to such leave. The modified rules provide that documentation should be supplied as soon as it is practicable to do so, which could be at the time leave is requested but might also be later.
  • Relationship to New York court decision: The court had concluded that a requirement that employees provide documentation prior to FFCRA leave was not justified. It appears that the DOL’s modified rules should satisfy the court’s concerns.

Issue: Must work be available for the employee to be entitled to leave under FFCRA?

  • DOL response: The DOL’s earlier guidance concluded that FFCRA leave is available only to an employee who could otherwise have been working for the employer during the period of leave. Thus, an employee on furlough would not be entitled to FFCRA leave. The DOL’s modified regulation retains this requirement.
  • Relationship to New York court decision: The court concluded FFCRA leave is available to an employee, whether the employee could have otherwise been working for the employer or not. The modified DOL regulation does not conform to this aspect of the decision.


  • Lockton comment: In response to these regulatory modifications, employers should take the following actions:

1. If an employer had excluded from FFCRA leave-eligible employees who merely supported healthcare providers but were not performing medically related services, the employer should begin permitting those employees who no longer fall within the healthcare provider definition to take leave under FFCRA

2. If the employer had treated school closures (including alternate or hybrid attendance) as intermittent leave requiring employer consent, consent should no longer be required.

3. If documentation is not immediately available at the time FFCRA leave is requested, employers should offer employees adequate time to provide that documentation, even if that means the document is supplied during or after the leave. Note, however, that because documentation is merely a statement of information, employees should be able to readily provide it reasonably quickly following the request.

4. Employers that may be subject to the New York court opinion (i.e., are located in or have operations/employees in New York) may wish to consult with counsel to determine the appropriate course of action in light of the fact that the DOL’s modified regulation does not conform in every respect to the court’s opinion.


Summary of the DOL’s changes to its FFCRA regulation

Here, in a bit more detail, is a summary of the key changes made by the DOL to its earlier FFCRA regulation:

Definition of healthcare provider

The DOL previously defined healthcare provider to include both providers of medical services and any employees supporting the provision of healthcare. This essentially permitted some healthcare employers to exclude their entire employee population.

The DOL has now narrowed this definition to include only licensed doctors of medicine, nurse practitioners or other healthcare providers permitted to issue a certification under FMLA, and any other employee who is capable of providing healthcare services, meaning they are employed to provide diagnostic services, preventive services, treatment 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 DOL further clarified that employees such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not included in this definition.

  • Lockton comment: This revised definition may have significant impact on healthcare employers that employ fewer than 500 employees if they previously excluded all employees from FFCRA eligibility.

Another key concern involves healthcare systems made up of many entities with separate EINs. These systems may not have analyzed each individual entity to determine if they were an integrated employer or independently subject to FFCRA (because they had fewer than 500 employees) due to the broad healthcare provider exception. Because that exception has been narrowed, each entity with its own EIN needs to be analyzed to confirm either they have 500 or more employees or that they are part of an integrated entity. Otherwise, that separate entity will be subject to FFCRA and will need to comply with offering leave to its nonclinical employees.

Clarification of intermittent leave related to school closings

The DOL clarified that each school closing is an independent event and that multiple, nonconsecutive school closing events should not be treated as intermittent leave. Thus, employers subject to the FFCRA may not require their consent as a condition of an employee taking leave in full or partial day increments on school days where the school is operating on a hybrid attendance basis – such as alternate day, staggered time or other modified in-person attendance policies.

When a school adopts a hybrid attendance schedule due to COVID-19, the school is deemed physically closed to a student each day or partial day the school is not available to the student for in-person attendance. Under FFCRA, each day or partial day a student is not permitted to attend in-person instruction is a separate event for FFCRA leave. If the school is closed in its entirety for full days on a consecutive basis, that is also considered a single event for purposes of FFCRA leave.

Each time the school is closed or is deemed to be closed with respect to a student, the leave period is an independent leave event. Even if school closings occur multiple times over the course of a week or even for months, leave is not deemed to be intermittent. This is distinguished from the scenario where the school is closed for a period of consecutive days, and the employee wishes to take leave only for certain portions of that period, for reasons other than the closure. In that case, the employee’s FFCRA leave is intermittent and the employer can require its agreement for such leave.

Timing of documentation

The DOL has clarified that documentation of leave under FFCRA must be provided as soon as it is practicable (rather than the previous position that it be provided prior to leave). However, it further indicated that such documentation would most likely be available as of the request for leave. If this is the case, documentation is expected to be provided concurrently with the leave request.

Work availability rule

The DOL declined to make any modifications to its earlier rule that FFCRA leave is available only if the employee could have otherwise been working during that leave period. Employers outside the jurisdiction of the New York court that ruled otherwise can breathe a sigh of relief; had the DOL eliminated that requirement, employers would have faced significant administrative concerns in implementing the change. Those employers bound by the court’s decision should consult with counsel on the best way to address the court’s position.


Lisa Carlson, J.D.

Compliance Services

Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's Government Relations group are not privileged under the attorney-client privilege.

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