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Employment Law Update

Department Of Labor Issues Revisions To FFCRA Regulations

by S. Whitney Rahman

In August 2020, a court in New York held that certain portions of the temporary regulations to the Families First Coronavirus Response Act (“FFCRA”) were invalid. Accordingly, the Department of Labor has announced revisions to the temporary FFCRA regulations. These revisions are scheduled to be published on September 16, 2020.

Health Care Exemption

Most importantly, the revisions address which employees may be considered “health care providers” for purposes of the health care provider exemption contained in the FFCRA. The temporary regulations broadly defined health care provider to include nearly all employees of health care related entities, including doctor’s offices, hospitals, medical laboratories and similar entities.

The revisions specify that employees who may be considered health care providers include a much narrower group of individuals. Health care providers under the revisions include only those who are health care providers under the Family and Medical Leave Act (“FMLA”) (such as doctors, dentists, physician assistants, and the like), or any other employee who is capable of providing health care services. This requires that 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 that, if not provided, would adversely impact patient care.

The revisions provide that employees who are “capable of providing health care services” include only nurses, nurse assistants, medical technicians, and any other persons who directly provide medical services; employees providing medical services under the supervision, order, or direction of, or providing direct assistance to, a person providing medical services; 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 for diagnoses and treatment.

The revisions specify that employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services. The revisions specify that employees who are not eligible for exemption include IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billing personnel.

Notice And Documentation

The revisions also clarify that employees need not give notice in advance in order to qualify for FFCRA paid sick leave provisions. Instead, notice must be given as soon as practicable, based on the particular circumstances, after the first workday or portion of a workday that the employee is absent. Notice for expanded FMLA leave also must be given as soon as practicable. If the need for expanded FMLA leave is known in advance, it usually will be practicable to give notice in advance. The revisions specify that, generally, it will be reasonable for notice to be given by someone such as a spouse, adult family member or other responsible party on the employee’s behalf, if the employee is unable to do so personally.

Documentation of the need for the leave also must be provided as soon as practicable. The revisions note that it usually will be practicable for an employee to provide documentation at the same time that he or she provides notice of the need for leave.

Requirement That Work Must Otherwise Be Available

The revisions also clarify that, if an employee is taking paid sick leave (1) because the employee has been advised by a health care provider to self-quarantine; (2) because the employee is seeking medical diagnosis for COVID-19; or (3) for another similar condition as specified by the Secretary of Health and Human Services in consultation with Secretaries of Treasury and Labor, the employee is entitled to paid leave only if the employer otherwise would have work available for him or her. Previously, the regulations had stated that the employer must have work available in order for an employee to be eligible for paid sick leave for the other reasons for which paid sick leave is available, but did not include the above reasons.

What Does This Mean For You?

If you have employees that you have considered to be exempt health care providers under the FFCRA, you should review and revise your policies to make sure they are in compliance with the revisions to the temporary regulations. Some of the employees you may have considered to be exempt may not now qualify for the exemption, and may need to be allowed to take paid sick leave. You should also review your policies to make sure that you are not requiring employees to provide notice and documentation for FFCRA prior to the first day of absence, unless it is for child care leave that was known in advance. Finally, you should understand that, if an employer does not have work available for an employee, the employee is not eligible for FFCRA leave under any of the FFCRA reasons.

If you have questions on this or any other employment or labor matter, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237, Grace C. Nguyen Bond at gcnb@blakingerthomas.com or (717) 509-7226, or Jill M. Laskowitz at jml@blakingerthomas.com or (717) 509-7261.

**This update is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist.**