The U.S. Department of Labor (“DOL”) has announced that it will be publishing a revised rule to provide clarification for employers and others seeking to understand the paid leave requirements under the Families First Coronavirus Response Act (“FFCRA”). In early August, the U.S. District Court for the Southern District of New York entered an order which purportedly vacated portions of the DOL’s regulations implementing the FFCRA. In the wake of the District Court order, employers across the Nation struggled to determine whether the order had nationwide effect. The DOL’s revised rule will take effect on September 16, 2020 and will address the portions of the regulations that the District Court’s order vacated.
Adjusted Definition of Health Care Provider: The largest impact of the revised rule will be felt by those employers who have relied on the DOL’s definition of “health care provider” to exempt its employees from paid leave under the FFCRA. The DOL’s revised rule will limit “health care providers” exempt from the paid leave requirements of the FFCRA to doctors of medicine or osteopathy who are authorized to practice medicine or surgery and other employees that are “capable of providing health care services.” Most notably, the exclusion will no longer apply simply because an employee works for an entity that provides health care services.
The revisions note that a “health care provider” 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. The DOL has provided more detailed guidance on the topic, which can help employers identify which employees the exclusion applies to. For example, “health care providers” will include, among others, nurses, nurse assistants, medical technicians, and any other persons who directly provides “diagnostic, preventive, treatment services, or other services that are integrated with and necessary to the provision of patient care.” This may include employees, such as laboratory technicians, who do not directly interact with patients or report to another health care provider directly, but who provide services integrated with necessary components to the provision of patient care. The DOL has also identified employees who will not be covered under the exclusion, including: IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.
Other Notable Impacts of DOL Revisions: In addition to clarifying how “health care provider” will be defined, the DOL provided guidance on the other portions of its regulations that the District Court’s order addressed, including:
- Work-Availability Requirement: The DOL’s revisions reject the District Court’s take on the work-availability requirement and reaffirm that if an employer has no work available for an employee, then the employee will not be entitled to take leave under the FFCRA.
- Mutual Agreement for Intermittent Leave: The DOL’s revisions reject the District Court’s position with respect to whether an employee must obtain an employer’s approval before being able to take intermittent leave. The revisions reaffirm that an employer must provide approval before an employee can take intermittent leave where such leave is permitted by the regulations.
- Requiring Documentation Prior to Taking Leave: The DOL’s revisions also addressed when an employee must provide documentation supporting their need to take emergency leave. In keeping with the District Court’s ruling, employees are now to provide documentation “as soon as practicable”, rather than prior to taking leave. The DOL has noted that in most cases, this will be when the employee gives notice that they will be taking leave.
What Employers Should Do Now: Employers who have relied on the “health care provider” exemption in the past should review the new definitions and begin addressing requests for leave in accordance with its revised terms. Employers that have specific questions regarding how the DOL’s revisions will impact them should contact their employment counsel. Based on the circumstances surrounding a particular business, employment counsel can help employers evaluate how the clarifications by the DOL might impact their decisions to provide paid leave for certain employees.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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