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On September 11, 2020, The U.S. Department of Labor (DOL) issued revised Regulations for the paid sick leave and expanded family leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions were made as a direct result of a U.S. District Court of Southern District of New York decision in August that found portions of the DOL regulations pertaining to the FFCRA invalid. Some of the key revisions are set forth below.

Work Availability Required for FFCRA Leave

The DOL reaffirmed that FFCRA leave can only be taken if employees have work available to them and the FFCRA qualifying reason is a “but-for-cause” of the employee’s inability to work. In other words, without the qualifying reason, the employee would be able to work. The term “leave” should be interpreted consistent with its interpretation under the FMLA. In other words, an employee cannot take leave at a time when the employer’s business is closed or the employee is not expected to work due to layoffs, furloughs or closure. The DOL also revised the rule to explicitly apply the work-availability requirement to all FFCRA qualifying reasons for leave.

The Definition of “Health Care Provider” has Narrowed.

Under the FFCRA, “health care providers” are excluded from being entitled to coverage under the law. Thus, the definition of this type of worker is extremely important. Under the revisions, the definition of “health care provider” has been narrowed to include workers who meet the definition under the Family and Medical Leave Act (FMLA) or those employed to provide “diagnostic services, preventive services, treatment services, or other services that are integrated and necessary to the provision of patient care which, if not provided, would adversely impact patient care.” The FMLA definition includes “doctors of medicine or osteopathy” authorized to practice in their state or other medical professions such as dentists, podiatrists, clinical psychologists, optometrists, many chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants and related professionals. In addition, employers may also elect to exempt from coverage nurses, nursing assistants, medical technicians, and laboratory technicians who process test results.

On the other hand, the revised rule gives the following examples of employees who may not be excluded: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. The revised rule states that while the services provided by these employees may be related to patient care — e.g., an IT professional may enable a hospital to maintain accurate patient records — they are too attenuated to be integrated and necessary components of patient care. This change was made because the DOL’s original definition was too expansive, excluding from FFCRA coverage “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health 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 entities. A New York federal court judge, who struck down this broad definition, holding it went well beyond what the FFCRA should provide.

Employer Approval is Required for Intermittent Leave

The DOL reaffirmed that employees must obtain their employer’s approval prior to taking paid sick leave (EPSL) or expanded family and medical leave (EFMLA) on an intermittent basis. Similar to the requirements under the FMLA, the regulations state that employees must provide a qualifying reason for leave, and work with their employer to arrange leave. The Department expressly created a regulation that permits an employee to take FFCRA leave on an intermittent basis only when taking leave to care for their child whose school, place of care, or child care provider is closed or unavailable due to COVID-19. And intermittent leave even for this reason is contingent upon the employer’s consent. The Department confirmed this remains the case.

Employees Must Provide Documentation Supporting Leave “As Soon as Practicable”

Employees must provide their employers with documentation supporting their leave requests “as soon as practicable.” Typically, this would require that documentation be provided to the employer before the leave was taken. But as the New York district court’s decision held, that may not be possible in all circumstances. Employers should be careful not to require supporting documentation as a precondition to providing FFCRA leave, and should provide employees a reasonable opportunity to provide the required documentation. Documentation for leave should generally include the following: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work. For certain qualifying reasons, additional documentation is required.


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