In light of a federal court decision that invalidated portions of the regulations implementing the Paid Sick Leave and Expanded Family and Medical Leave provisions of the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor has reaffirmed or revised those portions of the regulations at issue.
The revisions go into effect September 16, 2020. A summary of the revisions follow:
The Work-Availability Requirement. The DOL reaffirms the requirement that employees may take FFCRA leave only if work would otherwise be available to them, i.e., only if they would have worked if not for the qualifying reason for the leave. The revised rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded FMLA. 29 CFR 826.20.
- The work-availability requirement for FFCRA leave should be understood in the context of the applicable anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discrimination against employees for taking such leave.
Intermittent FFCRA Leave Requires Employer Approval. The DOL reaffirms the requirement that an employee must have employer approval to take FFCRA leave intermittently (i.e., in separate periods of time, rather than one continuous period). 29 CFR 826.50.
- The employer and employee may memorialize in writing any agreement under this section, but a clear and mutual understanding between the parties is sufficient.
- With employer approval, an employee's eligibility to work intermittently depends on the reason for the leave:
- Eligible for intermittent FFCRA leave:
- caring for the employee's son or daughter whose school, place of care, or childcare provider is closed or unavailable due to COVID-19 related reasons.
- Not eligible for intermittent FFCRA leave:
- being subject to a Federal, state, or local quarantine or isolation order related to COVID-19;
- being advised by a health care provider to self-quarantine due to COVID-19 concerns;
- experiencing COVID-19 symptoms and seeking a medical diagnosis;
- caring for another individual who is either subject to a Federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns; and experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services.
- The exception for teleworking remains entact. An employee who is teleworking (and not reporting to the worksite) may take intermittent leave for any of the FFCRA's qualifying reasons as long as the employer consents.
Healthcare Provider Definition Restricted. The DOL revises the definition of “healthcare provider,” in the context of what employees an employer may exclude from FFCRA's paid leave entitlement. The revised definition focuses on the employees' role and duties rather than on the employer. A health care provider under the revised definition includes:
A. doctors of medicine or osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers and physician assistants; or
B. capable of providing health care services, meaning the employee 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.
- 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.
- Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, 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.
The revised definition includes the following examples:
- Nurses, nurse assistants, medical technicians, and any other persons who directly provide services as described in B above;
- Employees providing services described in B above under the supervision, order, or direction of, or providing direct assistance to, a person described in A above;
- Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.
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, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
Documentation. The DOL clarified that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable rather than before the leave is taken. 29 CFR 826.100.
Notice. The DOL corrected an inconsistency regarding when employees may be required to provide notice of a need to take Expanded Family and Medical Leave to their employers. 29 CFR 826.90.
View Other News
March 8, 2021
New CDC Guidance For When You Have Been Fully Vaccinated
February 15, 2021
New OSHA COVID-19 Guidance
September 15, 2020
Revised FFCRA Regulations Effective September 16, 2020
August 24, 2020
OSHA's Guidance On Returning To Work
August 21, 2020
KHRC Expands Definition of "Sex" Discrimination Under the KAAD
May 1, 2020
WARN Act COVID-19 FAQs
April 7, 2020
Employer's Recordkeeping Requirements under the FFCRA
April 7, 2020
DOL Issues Guidance for the FFCRA
March 30, 2020
FFCRA and Public Sector Employees
March 30, 2020
FFCRA Small Business Exemption
March 19, 2020
ADA, Rehabilitation Act, and COVID-19
March 19, 2020
Governmental COVID-19 Guidance
March 19, 2020
SBA Disaster Relief Update for COVID-19
March 12, 2020
KDHE Coronavirus Updates
February 26, 2020
Free Document Destruction
February 18, 2020
Kansas Supreme Court Travel Docket
January 17, 2020
Final Joint Employer Rule Effective March 16, 2020
January 14, 2020
Do You Have Questions About Our Kansas Courts?
September 27, 2019
New Overtime Rule Effective January 1, 2020
July 30, 2019
Mr. Shaffer 1927-2019
June 10, 2019
June is National Safety Month
June 4, 2019
Happy June 4th (1919 - 2019) 19th Amendment
April 25, 2019
UPDATE: EEO-1 pay data due September 30, 2019
April 9, 2019
Notice of Proposed Rulemaking: Joint Employer Status
April 2, 2019
April is Distracted Driving Awareness Month
March 14, 2019
WHD Issues New Wage and Hour Opinion Letters
March 7, 2019
DOL Issues Press Release on Overtime Update Proposal
February 26, 2019
Attorneys Attend Probate Best Practices Seminar
January 22, 2019
Carole DeWald Speaks on HR Practices and Policies
March 1, 2018
We are pleased to welcome new attorneys to our firm.
September 8, 2017
Mr. Cabbage 1930-2017
April 27, 2017
NATIONAL PRESCRIPTION DRUG TAKE BACK DAY, APRIL 29, 2017
March 1, 2017
Updated Guidance for Completing Form I-9
February 20, 2017
Tax code information
March 30, 2012
Francis E. Meisenheimer Sworn In
February 29, 2012
Frank Meisenheimer Named District Court Judge
April 21, 2011
John B. Swearer to Serve on KBA Board of Directors
March 18, 2011
Arlyn Miller promoted to partner
March 18, 2011
Phil Ridenour presented a program in Junction City, Kansas