Employee Benefits Compliance, COVID-19

DOL Temporary Rule Addresses COVID-19 Paid Leave Issues

Contributing Author:
Vanessa Smith
Leavitt Group Employment Law Preferred Partner


On September 11, 2020, the Department of Labor issued new temporary rules intended to clarify when employers must offer paid leave under the Families First Coronavirus Recovery Act (FFCRA), enacted on March 18, 2020. The FFCRA provides for two paid leaves under certain circumstances:

The Rule is in effect from September 16, 2020, to December 31, 2020, or until the end of the national emergency, whichever is later.

Key Components of the Temporary Rule

There had been many questions since EPSL and EFMLA were enacted surrounding the circumstances under which this leave was available. The Temporary Rule is intended to answer those questions.

The key components of the Rules include the following.

1 – The employer must have actual work the employee would have done if not on leave.

The Rule reaffirms that paid sick leave and expanded family and medical leave may be taken for the qualifying reason “only if the employee has work from which to take leave.” Therefore, if there is no work to perform, there is no work from which to take a leave. In such situations, FFCRA does not apply and such leave is not covered by the FFCRA.

2 – Approval is needed by the Employer to take intermittent leave. 

The Rule reaffirms that an employee must obtain the employer’s approval to take paid sick leave or intermittent FMLA leave. This regulation states that “the ability of an employee to take paid sick leave or expanded family and medical leave intermittently while reporting to an employer’s worksite depends upon the reason for the leave.”

Therefore, the employee may take up to the entire portion of paid sick leave or expanded family and medical leave intermittently “to care for the employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable, because of reasons related to COVID-19,” as long as the increment of time is agreed to by the Employer and Employee.” This may include time spent during the day whether the employee is reporting to the worksite or teleworking. In such a case, only the time actually taken under the intermittent leave agreement “may be counted toward the employee’s leave entitlements under the FFCRA.”

The employer-approval condition does not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on some form of hybrid-attendance basis.

3 – The definition of “Health Care Provider” is revised. 

The most significant change contained in the Temporary Rule is in the revised definition of “Health Care Provider.” Under the FFCRA, employers may exclude health care providers and certain employees of health care providers from eligibility for EPSL and EFMLA if the employer chooses to do so.

The Rule provides that a “Health Care Provider” is an employee who meets the definition of that term under the FMLA or those who are employed to provide diagnostic services, preventative services, treatment services or other services that are “integrated with and necessary to the provision of patient care” which, if not provided, would adversely impact patient care. Employees who handle marketing, billing, and other functions not related to patient care services cannot be exempted from the FFCRA’s paid leave provisions.

The Rule also clarifies that “integrated into and necessary to the provision of health care services” includes bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

4 – Required notice for leave must be provided to Employer “as soon as practicable.”

DOL clarifies that notice may not be required in advance and may only be required after the first workday for which an employee takes paid sick leave. However, advance notice for EFMLA is not prohibited if the need is foreseeable. The Rule states that notice for family and medical leave is required “as soon as practicable; if the need for leave is foreseeable.”

The documentation must include the following:

  • The employee’s name;
  • The dates for which leave is requested;
  • The qualifying reason for leave; and
  • An oral or written statement that the employee is unable to work.

The Rule provides the following example of when an employee has a foreseeable situation and must therefore notify the employer without delay:

If an employee learns on Monday morning before work that his or her child’s school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.


Employers are encouraged to work with an employment law specialist to ensure compliance with all laws applicable to your specific circumstances. Leavitt Group’s preferred partner for employment is Vantage Solutions. For more information, please contact Vanessa Smith at vsmith@vantage-solutions.com or visit http://vantage-legal.com/agency-representation/.

Also see, the Leavitt Group COVID-19 Resource Center for full details on these laws.

The information herein is intended to be educational only and not to serve as legal advice. Consult with your own legal professional to ensure compliance with all applicable law.

Vanessa L. Smith, Esq. is principal and Managing Counsel of Vantage Legal Solutions, P.C., a Chicago-based boutique employment law firm.