On Friday, September 11, 2020 the U.S. Department of Labor (DOL) issued revisions to the Family First Coronavirus Response Act (FFCRA) regulations regarding paid sick leave (EPSLA) and expanded family and medical leave (EFMLEA). These revisions are in response to an August 3, 2020 decision of the U.S. District Court for the Southern District of New York finding portions of the regulations invalid. The revisions include a more thorough definition of “healthcare provider”, an explanation of the documentation requirement for leave and additional explanations regarding when leave and intermittent leave is available.
Definition of “Healthcare Provider”
The FFCRA allowed employers to exclude “healthcare providers” from the paid leave provisions of the FFCRA. Many interpreted the original FFCRA language to allow healthcare provider employers to exempt all of their employees from the paid leave requirements, rather than just the employees that truly provided healthcare services. This interpretation was specifically rejected by the New York court and the definition revised by the DOL as such:
A Healthcare Provider is:
- Any employee who is a health care provider under 29 C.F.R 825.102 and 825.125[i]; or
- Any other employee who is capable of providing health care services – employed to provide diagnostic services, preventive services, treatment services or other services integrated with and necessary to the provision of patient care
- Types of employees: Physicians, nurses, nurse assistants, medical technicians and employees providing services to those listed above
- Employees not providing health services are typically not “healthcare providers” for these purposes: IT professionals, HR personnel, maintenance staff, food service, records managers, consultants and billers
Notice & Documentation for Leave
In order for an employee to take leave under the FFCRA regulations, the employee is required to provide notice and documentation. The revisions state that notice may not be required in advance and may only be required after the first day the employee takes paid sick leave (EPSLA). Notice for EFMLEA is required “as soon as practicable” which may be before the leave if the leave is foreseeable.
In addition to notice, documentation is also required. Documentation is not required prior to the leave but should be provided “as soon as practicable”.
Leave and Intermittent Leave
The revisions to the FFCRA regulations include a reminder that the paid leave entitlements are only available if the employer does not have work for the employee, either at the employee’s normal workplace or by telework.
The revisions also include clarifications regarding intermittent leave. Leave taken under EPSLA and EFMLEA to care for children who have an alternate day or other type of hybrid attendance schedule is NOT considered intermittent leave and therefore does not require employer approval. Each day or segment of leave for such purposes is considered a separate reason for leave.
The DOL confirms that situations that require the employee to take true intermittent leave under EPSLA or EFMLEA are still subject to employer approval.
Employers who interpreted the original FFCRA definition of “healthcare provider” as applying to their operations should review this update from the Department of Labor. These updated regulations could cause some employers to update their policies so they can remain complaint with federal law.
[i] 29 C.F.R. 825.102 defines “healthcare providers” as MDs, DOs, podiatrists, dentists, optometrists, chiropractors, nurse practitioners, nurse-mid-wives, clinical social workers, and physician assistants in addition to others authorized to practice in the State. 29 C.F.R. 825.125 defines “health care provider” as a MD, DO or any other person capable of providing health care services.