Newly-Revised FFCRA Regulations Go Into Effect September 16, 2020

As we noted in a prior post, on August 3, 2020, a federal court in New York ruled in favor of the New York Attorney General on several of her challenges to the U.S. Department of Labor’s regulations to the Families First Coronavirus Response Act (“FFCRA”).  In particular, the court found that the regulations’ documentation requirements, work-availability requirement, and definition of “health care provider” were inconsistent with the text of the FFCRA.  In response to the court’s ruling, the DOL partially revised its regulations late last week, which will go into effect on September 16, 2020.

Before addressing what the DOL changed, it is equally important to note what the DOL did not change.  First, the DOL reaffirmed that employees may take FFCRA leave only if work would otherwise be available to them.  In other words, furloughed employees remain ineligible for paid leave under the FFCRA.  Second, the DOL stood firm on its requirement that an employee have his/her employer’s approval to take FFCRA leave intermittently.

The DOL also clarified several points regarding when an employee must provide notice of the need for leave and documentation supporting the need for leave under the FFCRA.  Although the regulations, as initially drafted, required an employee to provide documentation “prior to” taking FFCRA leave, they now require documentation to be given “as soon as practicable, which in most cases will be when the employee provides notice” of the need for leave.  Furthermore, when an employee requests FFCRA leave to care for a child whose school or place of care is closed, he/she must now provide notice as soon as practicable.  If leave for this purpose is foreseeable, the employee should generally provide notice before taking it.

Last, but not least, the biggest change pertains to the regulations’ definition of “health care provider.”  The FFCRA allows employees of certain “health care providers” to be exempted from its coverage.  The FFCRA used the fairly narrow definition of “health care provider” set forth in the Family and Medical Leave Act (“FMLA”).  The regulations, as initially written, used a significantly broader definition that included “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health care department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.”  The New York federal court ruled that this definition was overly broad.

In its revised regulations, the DOL limits the definition of “health care provider” to include those who are defined as such under the FMLA (i.e., doctor of medicine or osteopathy authorized to practice in their state or other medical professionals, such as podiatrists, dentists, clinical psychologists, optometrists, many chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, and other similar professionals) as well as professionals who provide “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”  The regulations clarify that:

  • Diagnostic services include “taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.”

  • Preventive services include “screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.”

  • Treatment services include “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 services which, if not provided, would adversely impact patient care, include “bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

For an individual to be a potentially exempt “health care provider” under the revised regulations, it is no longer enough that an employee “works for an entity that provides health care services.”  The DOL specifically identifies the types of employees who can continue to be excluded from taking FFCRA leave:

  • “Nurses, nurse assistants, medical technicians, and any other person” who directly provide 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” (e.g., laboratory technicians who process test results necessary to diagnoses and treatment).

The DOL also specifically identifies the types of employees who are not exempt “even if their services could affect the provision of health care services”: “IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.”

In light of these significant changes to the regulations, employers must revisit their policies to determine how they are affected.  For questions about this or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on this and the other key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.

George Hlavac