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From SESCO: DOL Releases Revised FFCRA Regulations

Reprinted with Permission from SESCO: The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020. The sweeping federal legislation provides emergency paid sick leave (EPSL) and expanded paid Family and Medical Leave (EFML) to certain covered workers impacted by the COVID-19 pandemic. On April 1, 2020, the U.S. Department of Labor (DOL) issued regulations implementing the FFCRA and answering, at least in part, some questions related to coverage, eligibility, use, and job restoration. On September 11, 2020, the DOL issued revised regulations; the revised regulations are effective September 16, 2020.
The “Work Availability” Requirement Remains Intact
In the amended rules, the DOL “reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave.” Therefore, if an employer closes an employee’s worksite or the employee is furloughed, he or she is ineligible for FFCRA leave even if otherwise impacted by a COVID-19-qualifying reason because the COVID-19-qualifying reason is not the but-for cause of his or her inability to work. In fact, the only modification the DOL made to the “work availability” requirement was to clarify that it applies to all FFCRA-qualifying reasons, not just a handful of them, thus correcting what it dismisses as a drafting oversight in the original.
Employer Consent Still Required To Take Intermittent FFCRA Leave
The DOL also reaffirmed that intermittent FFCRA leave is available only with employer approval, but provided further context for its rationale.
– With respect to EPSL leave, the DOL reasons that employer consent is required for intermittent leave (and then only when the employee is teleworking and does not present a risk of contagion) because teleworking arrangements already require employer consent.
– With respect to EFML leave, the DOL did, however, provide some comfort to parents and caregivers whose children are headed back to school on a hybrid schedule, meaning their children attend school in-person on some days and continue distance learning on others. The DOL opined that employer approval is not required for employees to use time off in full-day increments on distance learning days. Although the DOL’s logic is a bit strained, the DOL reasoned that a set hybrid school attendance schedule is not, in fact, intermittent leave, but rather, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”
Harmonization of Notice Requirements
The FFCRA permits employers to require employees to follow reasonable notice procedures to continue to receive EPSL after the first workday of leave. The original DOL regulations required employees to provide documentation regarding the employee’s need to take FFCRA “prior to” taking EPSL or EFML, which was inconsistent with the FFCRA’s plain language permitting notice after a missed workday of leave. The regulations have amended to read that documentation may be given “as soon as practicable,” which in most cases will be when the employee provides notice of need for leave.
“Health Care Provider” Exemption Narrowed Substantially
The most substantial change to the DOL’s regulations is to the definition of “health care providers” who may be denied FFCRA leave. The FFCRA permits employers to deny FFCRA leave to otherwise qualified employees if they are “health care providers.” The original regulation defined this term very broadly.
As revised, the DOL now has limited the definition of “health care provider” to include those professionals already defined as health care providers under the FMLA, and thus eligible to certify the need for medical leave or unique susceptibility to COVID-19 for purposes of EPSL certification (e.g., medical doctor, osteopathic doctor, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, and physician assistants).
But the DOL also exempts professionals who provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” “It is not enough that an employee works for an entity that provides health care services;” rather, the employee must be capable of providing diagnostic, preventive or treatment services or integrated services that, “if not provided, would adversely impact patient care.” Although not an exhaustive list, the DOL provided examples of three types of employees who may qualify as health care providers under this revised definition. The first includes nurses, nurse assistants, and medical technicians. The second type includes employees providing services under the supervision, order, or direction of, or providing direct assistance to, specifically enumerated health care providers, such as doctors and nurses. The third type includes employees who provide services integrated with and necessary to the provision of patient care, such as laboratory and radiology technicians.
For purposes of further clarification, the DOL offers examples of health care field employees who should not ordinarily be exempted from FFCRA coverage, such as IT professionals, building maintenance staff, HR personnel, cooks and food service workers, records managers, consultants, and billers. These individuals render services related to patient care, but not integrated and necessary to patient care; in other words, their services are too attenuated to fall within the definition of health care provider. In closing, the DOL reminds employers that the health care provider exemption is not workplace-dependent; some hospital workers will not be health care providers, whereas some employees in pop-up care centers responding to the pandemic will be. The analysis is role-driven and case-specific. Health care industry employers who have uniformly denied FFCRA leave in reliance on the broad definition in the original DOL regulations must revisit their decisions and review each employee’s unique roles and responsibilities vis-à-vis patient care before denying FFCRA leave requests.
SESCO Management Consultants will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s COVID-19 Resource Center as additional information becomes available.
SESCO retainer clients and members of select associations can call or email SESCO to discuss specific industry, state and/or company questions and concerns. Those receiving these alerts that are not SESCO clients can contact SESCO by phone, fax, or email to explore support options.
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