On September 11, 2020, the Department of Labor (“DOL”) issued the revised Families First Coronavirus Response Act (“FFCRA”) regulations. The new regulations can be found here. The regulations were issued in response to a ruling by a Federal Court in New York that invalidated sections of the prior regulations.
Generally, the new DOL revisions do the following:
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or 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.
The previous definition of a health provider included nearly anyone in the health care industry.The revised definition is much narrower. See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#56. For the purposes of defining the set of employees who may be excluded from taking paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider includes two groups. This first group is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
The second group is any person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are health care providers.
However, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital of a similar health care facility.
The DOL encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees 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.
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers. For expanded family and medical leave, advance notice is not prohibited; it is in fact typically required if the need for leave is foreseeable. Therefore, advanced notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave.
For example, 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.
The attorneys at Reno & Zahm LLP continue to monitor COVID-19 related statutes, rules, regulations and guidance, and we will endeavor to provide regular updates when warranted. Please contact us with any questions. We are here to help you make it through these challenging times.