by | Oct 8, 2020

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations related to the Families First Coronavirus Response Act (FFCRA) after a federal court decision invalidated several initial regulatory provisions. The new regulations were posted in the Federal Register and became effective as of September 16, 2020.  The DOL updated Q&A can be found here. The updated rule (29 CFR Part 826) can be found here.

Some of the revised regulations related to eligibility and notice affirm or explain existing rules. However, the DOL’s interpretation of intermittent leave related to daycares and schools and its narrowed definition of “health care providers” for the purposes of the health care provider exemption are significant and employers should consider updating relevant employer FFCRA policy provisions.

In its revised regulations, the DOL:

Reaffirms an employee is eligible for FFCRA only when the employer has work available for the employee to perform and from which the employee can take leave (work availability requirement).  If an employee is subject to a reduction in force or layoff, or the employer is temporarily closed, FFCRA is unavailable because there is no work to be performed from which to take leave.

Verifies employer consent is required for intermittent leave under the FFCRA and provides examples of what constitutes intermittent leave related to school closures.  Intermittent leave is defined as “leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period of leave taken for a single qualifying reason.”  Interpreting that definition, the DOL does not find employer approval necessary where a school is open on some days, but not other days and an employee is seeking full-day leave for days the school is closed.  According to the revised regulations, where a “school literally closes . . . and opens repeatedly,” each separate school closure constitutes an independent need for FFCRA leave and, as such, is not intermittent leave.  The DOL finds a different result when a school or daycare operates on partial day increments (such as half day remote and half day in-person) where an employee chooses to take leave in partial-day increments (rather than full day, continuous FFCRA leave).  Partial-day increments of this nature would be intermittent leave and require employer consent.

Explains when employees must provide notice of need for leave and documentation supporting the need for leave. Employees must provide notice of need for leave “as soon as practicable” if reason for leave is foreseeable, and should provide documentation and information supporting the need for leave “as soon as practicable.”

Significantly narrows the definition of health care providers for the purposes of the health care provider exemption. To ensure critical health and safety services are not understaffed during the pandemic, the FFCRA provides an option for employers to exclude “health care provider” employees from some or all of the paid leave entitlement. Initially, the DOL provided a very broad definition covering most employees working in medical facilities, regardless of whether they were providing direct patient services.  In response to the New York federal court decision, the DOL has revised and narrowed the definition to include only the following:

  • Licensed doctors of medicine or osteopathy, nurse practitioners or other healthcare providers permitted to issue certifications for purposes of the Family and Medical Leave Act (FMLA);
  • Nurses, nurse assistants, medical technicians and any other persons who directly provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care;
  • Employees performing services described above under the supervision, order or direction of, or providing direct assistance to, a person described above;
  • Employees who may not directly interact with patients and/or might not report to another healthcare provider, but nonetheless provide services integrated with and necessary to the provision of patient care (g., a laboratory technician who processes test results to support diagnosis);
  • Employees who perform diagnostic services like taking or processing samples, performing or assisting in the performance of X-rays or other diagnostic tests or procedures, and interpreting test or procedure results;
  • Employees who perform preventive services like screenings, check-ups, counseling to prevent illnesses, disease or other health problems;
  • Employees who provide treatment services like surgery or other invasive or physical interventions, administering or providing prescribed medication and providing or assisting in breathing treatments; and
  • Employees who provide other services integrated with and necessary to diagnostic, preventive or treatment services which if not provided would adversely impact patient care, such as bathing, dressing, hand feeding, taking vital signs, setting up medical equipment or procedures and transporting patients and samples.

The guidance clarifies that employees such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers do not fall into the definition just because the employer provides health care services or because the employee provides a service affecting the provision of health care services.

The revised definition significantly reduces the number of employees who can be considered “health care providers” and are, therefore, exempted from leave as compared to the DOL’s previous broad definition. It also causes significant confusion, particularly for home health care services, because an employer is left to interpret whether home caregivers “provide services integrated with and necessary to the provision of patient care” or are providing “other services integrated with and necessary to diagnostic, preventive or treatment services which if not provided would adversely impact patient care.”

Based upon this narrowed definition, companies who employee health care employees should review their current FFCRA-excluded employee population and consult with legal counsel as to whether FFCRA leave should be provided prospectively and/or currently to employee health care providers previously excluded under the DOL’s initial definition. Notably, the DOL encourages employers to “be judicious when using this definition to exempt health care providers from the provisions of the FFCRA” in order to minimize the spread of COVID-19. Employers can establish criteria for how they will utilize discretion in providing leave.  For example, an employer may decide to exempt health care providers from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.

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