On Friday, the Department of Labor announced that it was revising certain of its regulations explaining the Families First Coronavirus Response Act (FFCRA) in response to an August 3, 2020 district court decision finding certain portions of the existing regulations invalid. Most of the Department’s statements merely reaffirm and clarify the existing regulations and do not make a substantive change. The one exception pertains to employers in the healthcare industry. These are the issues addressed in the new regulations, which go into effect September 16, 2020.
Reaffirming and Explaining the Work-Availability Requirement
The FFCRA states that an employer shall provide its employee FFCRA leave to the extent that the employee is unable to work due to a need for leave “because” of or “due to” a qualifying reason for leave under FFCRA sections 3102 and 5102(a). The individual must have actual work from which to take leave, however, and the requirement is inapplicable if the employer has temporarily or permanently closed the worksite.
Reaffirming and Explaining the Employer-Approval Requirement for Intermittent Leave
Employees must receive employer approval to take intermittent FFCRA leave in all situations in which intermittent FFCRA leave is permitted.
Revisions to Definition of “Health Care Provider”
The FFCRA allows employers to exclude employees who are “health care provider[s]” or who are “emergency responder[s]” from eligibility for expanded family and medical leave and paid sick leave. The exclusion of health care providers and emergency responders serves to prevent disruptions to the health care system’s capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs that may result from health care providers and emergency responders being absent from work.
In its new regulations, the DOL adopts a revised definition of “health care provider.” First, not surprisingly, “health care provider” includes “physicians and others who make diagnoses.” Second, the rule identifies additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers. It expressly states that an employee is a health care provider if he or she is “capable of providing health care services.” Specifically, a health care provider must be “employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”
Thus, the only employees considered “health care providers” under the FFCRA are those specifically employed to provide some type of patient care. These employees qualify for exemption from the FFCRA’s paid-leave provisions. All other employees who do not provide patient care (e.g., maintenance, billing, janitorial, etc.) are not considered “health care providers” under the FFCRA and therefore, are not excluded from eligibility for expanded family and medical leave and paid sick leave. This is a narrowing of the DOL’s original position, which was to include any employee who worked for a health care or public safety employer.
Revising Notice and Documentation Requirements
The FFRCA permits employers to require employees to follow reasonable notice procedures to continue to receive paid sick leave after the first workday of leave. Documentation required need not be given “prior to” taking paid sick leave. After the first workday, notice should be provided “as is practicable.” However, if the need for leave is foreseeable, advance notice by the employee is typically deemed “practicable” and required.
Two things to keep in mind – one, the FFCRA only applies to employers of less than 500 employees; two, the FFCRA expires December 31, 2020 unless Congress extends it.
Click Here for a copy of the revised regulations.
– Written by Grace Ann Garner
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