Legal Bulletins

The Families First Coronavirus Response Act (FFCRA), which went into effect April 2, 2020, provides expanded leave rights and paid leave under the Family and Medical Leave Act (FMLA) as well as a new paid emergency sick leave entitlement.

The law permits the employers of “health care providers” to exclude those employees from both FFCRA leave entitlements. In its informal guidance and by regulation, the U.S. Department of Labor (DOL) embraced a broad definition of “health care provider” that included all employees who work for an array of health care entities regardless of whether the employee is involved in providing patient care. 

The state of New York filed suit in April 2020, challenging many aspects of the DOL’s FFCRA regulations. On August 3, 2020, a federal judge for the Southern District of New York invalidated four of the DOL’s rules, including the definition of health care providers who could be excluded from coverage. The court did not specify whether its opinion applied outside New York.

Definition of Heath Care Provider Narrowed

On September 11, 2020, the DOL issued revised FFCRA regulations that significantly narrow the definition of health care provider for purposes of the exclusion. Under the revised regulation, heath care provider means:

• A doctor of medicine or osteopathy;
• Podiatrists, dentists, clinical psychologists, optometrists and chiropractors;
• Nurse practitioners, nurse-midwives, clinical social workers and physician assistants; and
• Christian Science practitioners.

Health care provider also includes “[a]ny other Employee who is capable of providing health care services, meaning he or she is 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.” Under the revised regulation, these employees include only:

• Nurses, nurse assistants, medical technicians and any other persons who directly provide such services;
• Employees providing services under the supervision, order or direction of, or providing direct assistance to, a person described above; 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.

Employees who do not provide health care services as described above are not considered health care providers even if their services could affect the provision of health care services. Accordingly, employees, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants and billers, who would have been included under the DOL’s initial definition of health care provider, are now excluded and may be eligible for benefits.

Employers who have excluded some or all of their employees from FFCRA leave using the DOL’s broad definition of health care provider should reevaluate their workforce in light of the new more narrowly tailored definition.

Reaffirming that Work Must Be Available for the Employee to Take Paid Sick Leave

The New York court’s opinion also invalidated that portion of the DOL’s regulations that allowed employers to deny FFCRA leave if the employer did not have available work for the employee during the period leave was needed.

In its revised regulations, the DOL reaffirmed its initial interpretation of the law and revised its regulations to specifically state that an employee may not take FFCRA leave “where the employer does not have work for the employee.”

Clarifying Employee Notice and Documentation Requirements

The New York court’s opinion invalidated the DOL rule to the extent that it required employees to provide documentation supporting the need for FFCRA leave prior to taking the leave. The revised rules clarify that documentation need not be given prior to taking the leave, but may be given as soon as practicable.

The initial rules provided that an employer may only require notice of the need to take emergency sick leave or expanded FMLA after the first workday leave is used. The DOL noted that this statement is correct with respect to paid sick leave. However, for expanded FMLA leave, advance notice is not prohibited and, in fact, is required if the need for leave is foreseeable.

In the revised regulations, the DOL requires that notice of the need to take expanded FMLA leave should be provided “as soon as practicable,” but it clarifies that “if the reason for this leave is foreseeable, it will generally be practicable to provide notice prior to the need to take leave.”

Reaffirming the Need to Obtain Employer Authorization for Intermittent Leave

The New York court struck the DOL’s requirement that employees may only take FFCRA leave intermittently with employer permission, ruling that the DOL had not provided a sufficient basis for the rule. The DOL provided additional explanation for its reasoning and reaffirmed its positon that employees must obtain the employer’s approval to take FFCRA leave on an intermittent basis.

Effective Date of the Revised/Clarified Rules

The revised and clarified rules will take effect September 16, 2020. Both FFCRA leave entitlements are currently scheduled to lapse on December 31, 2020.

If you have questions about the application of the FFCRA, including the newly narrowed health care provider exclusion, or other COVID-19 employment issues, please contact Charles R. Bacharach.

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content.

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com