On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations addressing the availability of employee leave under the Families First Coronavirus Response Act (FFCRA). These regulations were issued in response to a federal court finding that the DOL exceeded its authority in its original regulations.
The FFCRA, created in response to the COVID-19 public health emergency, requires employers with fewer than 500 employees to provide their employees with paid sick leave (termed Emergency Paid Sick Leave or “EPSL”) and expanded family medical leave (referred to as Emergency Family Medical Leave of “EFML”). There are exemptions to the leave requirements.
In early spring, the DOL issued its initial regulations addressing a host of questions regarding the application and interpretation of the FFCRA. In those regulations the DOL clarified which employees counted as “health care providers” for purposes of one of the exemptions to the leave requirements. Several of the DOL’s regulations were challenged in federal court in New York. Recently, that court ruled that the DOL’s rules on the following topics were unlawful:
(1) the broad definition of an employee who is a “health care provider”;
(2) the requirement that an employer must consent to intermittent leave under FFCRA;
(3) the requirement that an employer must have available work before an employee can receive either EPSL or EFML, which DOL had termed the “work availability requirement”; and
(4) the types of notice and documentation an employee must provide before taking FFCRA leave.
Below is a summary of how the DOL addressed the foregoing issues.
Definition of Health Care
The DOL narrowed the definition of “health care provider.” Previously, an employee could be considered a “health care provider” for purposes of the exemption, if the employer was a health care provider—regardless of what role the employee played within the organization. Now, the term “health care provider” is defined as those employees who are already defined as “health care providers” for purposes of providing certifications under existing FMLA regulations, along with those employees who provide diagnostic, preventive, treatment or other services that are integrated with and necessary to health care and the provision of patient care, and if not provided, would adversely impact patient care.
The revised regulations clarify the types of services that are considered health care services or the provision of patient care:
- Diagnostic: Includes taking or processing samples, performing, or assisting in x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
- Preventive: Includes screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
- Treatment: Includes performing surgery or other invasive or physical interventions, prescribing medication, providing, or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
- Integrated: Those services that are “integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”
Beyond outlining the characteristics, the revised regulations provide a helpful, non-exhaustive list of exempt employees:
- nurses, nurse assistants, medical technicians, and others directly providing diagnostic, preventive, treatment, or other integrated services;
- employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
- employees who are “otherwise integrated into and necessary to the provision of health care services,” such as laboratory technicians who process test results necessary to diagnoses and treatment.
Conversely, the following employees should no longer be considered exempt from FFCRA leave entitlement:
- IT professionals,
- building maintenance staff,
- human resources personnel,
- food services workers,
- records managers,
- consultants, and
Work Availability Requirement
The DOL did not change its position on the work availability requirement. DOL maintains its position that for an employee to take FFCRA leave, an employer must have work available for the employee to perform when the need for FFCRA leave occurs. If the employee is not scheduled to work—whether due to a furlough, business closure, or otherwise—there is no work from which to take leave.
The DOL did clarify that the employee’s FFCRA reason for leave must be the sole reason that he or she is not working. An employer cannot use work unavailability as a pretense to prevent an employee from taking EPSL of EFML leave.
Definition of “Intermittent Leave
Similarly, the DOL has not substantially altered its intermittent leave rule, even though the district court rejected the original regulation. The new regulations detail additional analysis for why the DOL reached the conclusion it did. A key point the DOL raises is that an employer should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.”
Documentation and Notice Requirements
The DOL slightly adjusted the documentation rules to confirm that, like under the FMLA, an employee is not required to provide documentation before leave in every situation. Rather, an employee may provide documentation as soon as practicable.
Additionally, the DOL clarified that employees must provide the employer with notice as soon as practical when they seek EFML leave to care for a child whose school or place of care is closed. Thus, when an employee receives notice that school will be closed, the employee should notify their employer about the need for leave.
The change to the scope of the health care provider exemption is the most important change about which employers will have to address. Those in the health care industry should perform an analysis of employees’ job classifications to determine whether certain employees remain eligible to be exempt as “health care providers” under the revised definition. In light of the revised regulations, all employers should review their current leave practices and adjust accordingly.
Aside from the changes to the definition of health care provider, the revised regulations do not fundamentally change the DOL’s prior interpretation. Instead, the changes provide further clarification as to the basis for the DOL’s position. We suspect that the DOL promulgated these new regulations, in part, to support its position in later legal fights.
Attorney John Getty and legal clerk Kimbrell Hines contributed to this post.