Revised FFCRA Regulations Effective September 16, 2020

Posted by Martindell Swearer Shaffer RidenourSep 15, 20200 Comments

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.

If you have any questions about the FFCRA's application or implementation, please contact S. Eric Steinle or Carole DeWald.

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