ALERT- DOL Revises FFCRA Regulations

On September 11, 2020, the Department of Labor issued revisions and clarifications to the FFCRA Regulations that were issued on April 1, 2020. The DOL clarified and revised 5 areas where there has been confusion or ambiguity alleged. Below is an overview of the 4 issues “resolved” and what that means for employers. The amended regulations will take effect on September 16, 2020.

But-For Standard

As we know, there are seven qualifying reasons that an individual may take Paid Sick Leave (“PSL”). Please refer to my previous blog that discusses the PSL. Moreover, there are three qualifying reasons available to take the Expanded Family Medical Emergency Act Leave (EFMELA) Please refer to my prior blog on the EFMELA.

  • The qualifying reasons will be collectively referred to as “QR’s.”

  • The PSL and the EFMELA will be collectively referred to as “FFCRA Leave.”

The DOL clarified that in order for an employee to take this leave there a few things that must be established:

FIRST: The QR must be the BUT FOR cause for the leave. In other words, the QR must be the actual reason that the employee is unable to work. The DOL explains that if the employer is closed, or if the employee is furloughed, then that employee cannot take FFCRA Leave. This makes sense because the employer’s closure is not one of the QR’s, therefore it is not the but-for cause of the the need for leave.

SECOND: Employees are not eligible for leave, if there is no work to be done. Let’s break this down. If there is no work to be done- if the employee is not working- then there is no work to take leave from. This might seem like common sense; however, the NY Southern District challenged this very notion. The DOL replied to the Southern District by explaining what the word “leave” means and went one step further and revised the regulations. As of September 16, 2020, Sections 826.20(a)(3), 826.20(a)(4) and 826.20(a)(10) will read like the other subsections of the Section 826. The aforementioned sections will end with the phrase that reads something like, the employee “may not take [leave] where the Employer does not have work for the Employee.”

BOTTOM LINE FOR EMPLOYERS: If you are closed or if you have furloughed employees, they are not eligible for FFCRA leave. However, employers beware, employers cannot avoid granting the leave by purporting to have lack of work. Even more, an employer cannot make work unavailable in an effort to deny FFCRA leave (ie- altering an employee’s schedule in retaliation for a leave request.)

Intermittent Leave…as Long as the Employer Consents

As explained in my previous blog, the FFCRA and the original regulations are clear that an employee who is working either remotely or in-person, may take intermittent leave when they are caring for a child due to a school or child care closure. Even more, an employee who is sick, or caring for someone who is sick, may take intermittent leave when they are working remotely. (These sick employees are not working in-person). The original regulations are also clear that the aforementioned eligible employees can take the intermittent leave, so long as the employer consents. The Southern District of New York challenged this by stating that the DOL did not adequately explain the rationale for the consent requirement.

The DOL fired back with additional explanation for the consent requirement. The Department references the principle from the FMLA that stands for the notion that intermittent leave, where foreseeable, should avoid, “unduly disrupting the employer’s operations.”

EMPLOYEES WHO ARE SICK OR CARING FOR SOMEONE WHO IS SICK: While the DOL confirms the employers’ control in granting such intermittent leave, it throws a curveball and explains that employees should not be required to obtain medical certification of their need to work remotely intermittently. (“On the other hand, the Department does not believe that an employee should be required to obtain certification of medical need in order to telework intermittently because it may be unduly burdensome in this context for an employee to obtain such information.) BOTTOM LINE: When an employee is sick or caring for someone who is sick, that employee does not need to submit medical documentation supporting the need for that leave. However, if the employee wishes to take intermittent leave while teleworking, then they must come to agreement with the employer.

EMPLOYEES WHO ARE CARING FOR CHILDREN DUE TO SCHOOL CLOSURE: The DOL makes clear, if an employee wishes to take an entire day off to care for a child, then that employee does NOT need employer consent. However, if the employee is seeking to take intermittent leave, then that employee MUST get employer consent.

New Definition of Health Care Provider

Let’s rewind for a second. The FFCRA discusses Health Care Providers in two arenas. First, the FFCRA provides a definition of the Health Care Providers (“HCP”) so that it is established as to who can advise a person to self-isolate or quarantine due to COVID-19. Second, the FFCRA defines HCP’s for the purposes of establishing which employers may elect not to provide FFCRA leave to their employees who are HCP’s. This has proven to be a vague definition and a question that many employers have had to grapple with. Luckily, the Southern District called out the DOL for this vagueness, and the DOL delivered. The DOL served up a new definition of HCP for the purposes of the exemption. The new definition is broken down into many subparts. The bolded writing are for further explanation. The italicized writing is the actual regulation language.

For the purposes of Employees who may be exempted from Paid Sick leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is:

Section A: Any employee who is a health care provider under [the FMLA regulations],

Doctor of Medicine

Osteopath

Podiatrist

Dentist

Clinical Psychologists

Optometrists

Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist)

Nurse Practitioner

Nurse-Midwives

Clinical Social Workers

Physician Assistant

Any health care provider form whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

or;

Section B: Any other Employee who is capable of providing health care services, meaning [they are] 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: 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: screenings, check-ups, and counseling to prevent illnesses, disease or other health problems.

  • Treatment Services: performing surgery or other invasive 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 the Provision of Patient Care and if not Provided, Would Adversely Impact Patient Care: bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples

(ii)(A) [These employees] include only: Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described [in Section B].

(B) Employees providing services described in [Section B] under the supervision, order, or direction of, or providing direct assistance to, a person described in [Section A].

  • Any employee who is working under the supervision of one of the HCP’s listed in Section A or Section B above.

    (C) 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 diagnose and treatment.

(iii) 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.

  • ALERT ALERT! This is a difference from the original regulations. Now any employees who work for a HCP but are not themselves an HCP, are not exempt from FFCRA Leave.

(iv) Typical Work Locations. Employees described in [in this Section] may include Employees who work at, for example, a doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided….An Employee does not need to work at one of these facilities to be an HCP, and working at one of these facilities does not necessarily mean an Employee is an HCP.

  • This list is helpful; however, beware that an individual’s status as an employee at one of these listed locations does not meant that the individual is an HCP for the purposes of the exemption.

NOTE: The above definition is much more expansive than the definition of HCP for the purposes of diagnosing individuals and instructing them to quarantine or self-isolate.

Employee Notice

The Department clarifies that employees must provide notice for PSL and EFMELA “as soon as practicable.”

…FINAL THOUGHTS

These revisions and clarifications are impactful. Employers should consult with counsel to confirm the effect of these revisions.

Susie Cirilli