The Sophisticated Employer Blog

A few weeks ago, the U.S. District Court for the Southern District of New York struck down some parts of the Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA). Specifically, the modified sections relate to intermittent use of paid sick leave; the requirement that employees have work from which they need to take leave, and the definition of health care providers.

The DOL went back to the drawing board, or in this case the rules, and reviewed them in light of the court’s opinion. The DOL expanded on the issues raised by the court case in a new 15-page temporary rule, which is effective beginning today, Sept. 16 through the expiration of the FFCRA on Dec. 31, 2020.  I emphasize “temporary” because we now know that even “final” rules may be temporary, so this new temporary guidance may have a limited shelf live.

First, DOL reaffirmed the requirement that employees can only take FFCRA if they would otherwise have work available to them. The DOL pointed out that the requirement was explicitly in the text of the regulation for three of the reasons and the department’s intent was that it apply to all six reasons, even if not explicitly stated therein.

The DOL’s expanded explanation requires that an employee be allowed to take leave under the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act (for child care) only to the extent that a qualifying reason for such leave is a but-for cause of his or her inability to work. l ”leave” is an authorized absence from work, which is required for FFCRA leave. If there is no work, there is no need for a leave of absence from it.

Second, the DOL noted that most of the allowable reasons for FFCRA leave are not conducive to intermittent leave such as coming to work intermittently while infected with COVID-19. Relying on the Family and Medical Leave Act’s requirement that, in some circumstances, employer agreement for intermittent leave is required, the DOL found it also appropriate in the context of FFCRA, for qualifying reasons that do not exacerbate risk of COVID-19 contagion, namely, childcare reasons. However, the DOL clarified that an employee must give sufficient information to the employer to support the need for leave as soon as practicable, rather than prior to taking the leave.

Incidentally, for those who missed our prior blog post, the need for “childcare” only arises when the school’s or childcare’s building is actually closed. If an employee chooses remote/virtual learning, when in person is also offered, the FFCRA leave for childcare is unavailable to the employee. So, make sure you have the employee provide a document that specifies the name of the school/childcare, location and certifies that it the building is closed for in person learning/care. Then, as I like to say, “trust but verify!”

Finally and most significantly, the DOL revised the definition of “health care provider” and “emergency responders” that can be excluded from eligibility for leave under the FFCRA. Originally, the definition included any employee of an employer that qualified (i.e., the biller at the clinic). Now the focus is on the employee’s position and is limited to only those employees who are: (i) licensed doctors of medicine or osteopathy and (ii) any other person determined by the Secretary to be capable of providing health care services.  Specifically, a health care provider must be “employed to provide diagnostic services, preventive serves, treatment services or other services that are integrated with and necessary to the provision of patient care.”

Under the new definitions, in addition to doctors, health care providers include:

• Nurses
• Nurse assistants
• Medical technicians
• Any other persons who provide diagnostic services, preventive serves, treatment services or other services that are integrated with and necessary to the provision of patient care

This also includes employees who provide the above services under the supervision, order, or direction of, or provide direct assistance to the health care providers identified above.

The new definition of health care providers also includes employees who may not directly interact with patients or report directly to another health care provider but provide necessary health care services such as lab techs who process test results or x-ray techs. “Diagnostic, preventative and treatment service providers are all health care providers.”

Information technology (IT) professionals, building maintenance staff, human resource personnel, cooks, food service workers, records managers, consultants and billers are no longer health care providers even if they work for a clinic or hospital and thus may be entitled to FFCRA leave.

The new temporary rule may not impact many of you, but for anyone in the health care field, take note of the new definitions when considering requests for paid leave under the FFCRA going forward to the end of the year.

If you need assistance interpreting the FFCRA or any other employment related issues, always consult an experienced employment attorney. You never know, before you are confronted with a request, the new temporary rule may have changed.