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DOL issues updated and revised regulations for the Families First Act

Sep 16, 2020

The Families First Coronavirus Response Act (FFCRA) was enacted on March 18, 2020, creating additional leave rights for employees in response to the COVID-19 pandemic through two provisions: the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA). Since then, however, the exact contours of employee rights and employer obligations under the FFCRA have been the subject of some debate and disagreement.

The Department of Labor (DOL) first issued guidance on the FFCRA in late March in the form of Questions and Answers (Q&As) that it has since supplemented to include a total of 103 Q&As. On April 1, the DOL issued temporary regulations, answering many of the questions employers had raised after reviewing the statutory language of the FFCRA and the DOL’s previous guidance in the Q&As. Our summary of the Temporary Regulations is available here.

On August 3, 2020, in a lawsuit filed by the State of New York, a federal district court judge for the Southern District of New York struck down several portions of the DOL’s temporary regulations it determined had exceeded the scope of the agency’s authority. This ruling left many employers, especially those located in the Second Circuit, without a clear understanding of what portion of the temporary regulations, if any, remained in effect through the end of 2020 when the FFCRA terminates by its terms (unless otherwise renewed).

On September 11, 2020, the DOL issued an updated version of the temporary regulations in response to the legal decision from the United States District Court for the Southern District of New York. The revised regulations, which take effect on September 16, 2020, largely rejected the Court’s opinion and reinforced the DOL’s original regulations. But, the DOL made some important changes, particularly for employers who provide healthcare services. The key takeaways from these updated regulations are summarized below.

1. Available Work Still Required For Leave

The revised regulations keep intact the rule that an employee must have work from which to take leave in order to be eligible for either paid sick leave or expanded family and medical leave under the FFCRA.  This means that those employees whose worksite is closed or who have been furloughed remain ineligible for FFCRA leave. The regulations specify that this requirement applies to all FFCRA-qualifying reasons.

2. Intermittent Leave Still Requires Employer Consent

Under the revised regulations, intermittent EFMLA and EPSLA leave remains available only with employer approval. For those parents and caregivers whose children are returning to school on a hybrid schedule (a mix of distance and in-person learning), the DOL clarified that employer approval is not required for employees to use time off in full-day increments on distance learning days. The DOL opined that using leave in this manner is not considered “intermittent,” but rather, “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” The same logic applies for employees whose children attend half-days in-person on a set schedule. 

3. New Notice Requirements

Next, the revised regulations clarify when employees are required to give notice of their intent to take EFMLA or EPSLA leave and provide certain documentation supporting their need for such leave. Previously, DOL regulations required employees to provide notice and documentation supporting the employee’s need and eligibility for FFCRA leave “prior to” taking the leave. However, the New York federal court ruled this was inconsistent with the language of the FFCRA statute itself, which specifically provides that notice of paid sick leave may be given after the first day work is missed and notice of expanded family and medical leave is to be given “as is practicable.”

The revised regulation clarifies that notice and documentation for both types of FFCRA leave should generally be given “as soon as practicable.” If an employee is requesting EPSLA leave, notice may only be required after the first day work is missed; after that, it is required “as soon as practicable.” Notice for EPSLA leave cannotbe required before leave is actually taken. 

For EFMLA leave, on the other hand, notice is required “as soon as practicable,” which may be prior to when the leave is taken, if the reason for the leave is foreseeable. In fact, the DOL noted, advanced notice for EFMLA leave is “typically required if the need for leave is foreseeable.” If the reason for leave is not foreseeable, notice can be given “as soon as practicable” after the employee begins to take leave.

The DOL also revised the regulations governing required documentation to add the same “as soon as practicable” notice period. Required documentation typically includes the employee’s name, dates of leave, qualifying reasons for leave, and a statement that the employee is unable to work due to the qualifying reason for leave. The revised regulation notes that, in most cases, employees should give notice and turn in the required documentation at the same time.

4. Narrowing the Healthcare Provider Exemption

Finally, but perhaps most significantly, the DOL’s revised regulations narrowed the healthcare provider exemption. Under the FFCRA, employers are not required to provide any type of FFCRA paid leave to “health care providers.” That term, however, was left undefined by Congress. The DOL originally interpreted it expansively, to include almost anyone employed by a healthcare employer. The New York federal court ruled that interpretation was too broad, finding it could potentially include such “health care providers” as English professors at universities with medical schools. 

The new DOL regulation more narrowly defines who is a healthcare provider, providing concrete guidance on who is and is not covered by the exemption. First, the DOL clarified that “it is not enough that an employee works for an entity that provides health care services.” The worksite of the employee is also not conclusive; i.e. not all employees of a hospital are covered and conversely, employees need not work at a hospital in order to be covered. 

The definition of healthcare provider under the FFCRA is broader than the one used for that term under the FMLA. Unlike FMLA regulations, an employee is not required to carry a specific license or certification to meet the definition of “health care provider.” Instead, the new test focuses on the work the employee is employed to perform. The employee must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” Each of these terms (diagnostic services, preventative services, treatment services, and other integrated services) is specifically defined. They include not only traditional healthcare services like patient visits and procedures but also taking and processing samples, performing or interpreting x-rays or other tests, administering medication, physical therapy, bathing, dressing, feeding, and setting up for procedures. Under this definition, the DOL recognizes four categories of healthcare workers who are covered by the exemption and not eligible for FFCRA leave:

  • The first group are those who are included in the definition of “health care provider” under FMLA regulations.  This covers “physicians and others who make medical diagnoses,” such as dentists, psychologists, optometrists, chiropractors, nurse practitioners, physician assistants, clinical social workers, and Christian Science practitioners. 
  • The second group are those who directly provide patient services, such as nurses, nurse assistants, and medical technicians.
  • The third group are workers who work under the supervision, order, or direction of or provide direct assistance to employees who are in the first or second group.
  • The fourth group are those workers who do not work directly with patients but who are integral to patient care and treatment, such as laboratory technicians who process test results.

Employees who are employed by a healthcare provider but who do not fit into one of these four categories are presumed not to fall within the exemption and are eligible for FFCRA leave. Under the revised regulation, examples of such employees who are eligible might include “IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” 

We will continue to follow the constantly evolving guidance concerning the FFCRA and provide updates as new information arises. If you have any questions about how the FFCRA applies to your business and employees, please contact a member of Waller’s labor and employment practice group.

To read the DOL’s news release regarding the revisions, go here.

To view the revised regulations in full, go here. 

Access additional FFCRA insights from Waller here. 

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