FFCRA Rules Clarified in Response to New York Court Ruling

The Department of Labor (DOL) provides guidance on emergency paid leaves under the Families First Coronavirus Response Act (FFCRA).  Initial rules were finalized April 6 (with technical corrections April 10), but recently a federal court in the Southern District of New York declared four big portions of those rules invalid, saying they were inconsistent and/or lacked proper support.

Now the DOL has announced a revised final rule to clarify their position on those four areas so FFCRA administration largely doesn’t have to change from what employers have relied on all this time.  Instead, they are better clarified and supported, with the only substantial change being the definition of a health care provider whose FFCRA leave request may be able to be denied if it creates a hardship.

Here’s where they ended up, with these rules being effective Wednesday, September 16.

  1. Emergency FFCRA leaves are only for those who have work/telework available but cannot perform some or all of those hours due to one of the six qualified reasons.
    • The court had declared the emergency leaves should be available even when there is no work, but that’s what unemployment compensation is supposed to be for, so the DOL clarified that it’s only for missed work/telework.  However, the DOL also cautioned that employers should not target furloughs toward those needing FFCRA-qualified leaves.
  2. Employees must obtain employer approval to take intermittent FFCRA leaves.
    • The court had declared employers should be obligated to provide intermittent leaves, but the DOL held firm to its rule and offered additional support/clarification on why intermittent leave is not an automatic right but instead involves mutual agreement.
  3. Definition of a “health care provider” whose FFCRA leave could be denied was too broad under the initial rules.  It has been narrowed to those licensed/permitted to provide an FMLA certification, and those closely integrated with such providers without whom they could not provide essential health care.
    • We continue to remind employers to still allow such workers to submit a request for these leaves, evaluate whether the leave would truly create a hardship, and provide a written response to the employee’s request.  We have developed a sample employee request form and sample employer response form to help.
  4. Notice and documentation requirements and timing were inconsistent in the initial rules, so those have been cleaned up.  If the leave is foreseeable, then the leave should be requested in advance and documentation provided as soon as reasonably practicable.  Otherwise, notice and documentation should be provided as soon as reasonably practicable.

Since these elements don’t impact our sample FFCRA emergency leave forms, those will not need to be updated.


IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.