Amended FFCRA Regulations

On the evening of Friday, September 11, 2020, the DOL released amended Families First Coronavirus Response Act (“FFCRA”) regulations.

These new regulations go into effect on September 16, 2020, a mere five days after the regulations were released. All employers with fewer than 500 employees (and especially healthcare providers) should carefully review whether they need to amend their FFCRA practices and policies in response to the new regulations. Time is of the essence because, while the original roll out of the FFCRA included a temporary period of non-enforcement to allow employers time to become compliant with the new regulations, these new regulations provide only a five day lead-in period.

By way of background, on August, 3, 2020, a federal court in New York struck down several provisions of the DOL’s FFCRA regulations, including: (1) the broad definition of an exempt “health care provider”; (2) the requirement that FFCRA leave can only be taken if the employer otherwise has “work available” for the employee; (3) the requirement that the employee must receive employer consent to take FFCRA child care leave intermittently; and (4) the requirement that employees must provide documentation to the employer prior to taking FFCRA leave (as opposed to after the leave begins). The DOL’s amended regulations directly respond to this lawsuit.

The new regulations do the following:

1. Narrow the Definition of an Exempt “Health Care Provider”: The FFCRA states that “health care providers” are entirely exempt from the FFCRA, and are not entitled to FFCRA leave (although the employer may voluntarily choose to provide it). The original FFCRA regulations broadly defined “health care provider,” to include anyone employed at a doctor’s office, hospital, health care center, clinic, medical school, health department, nursing facility, retirement/nursing home, home health care provider, pharmacy, lab, and other similar places of employment.

The amended FFCRA regulations narrow this broad definition. Under the new regulations, a health care provider must: (1) meet the definition of the term “health care provider” under the existing FMLA regulations; or (2) 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 and, if not provided, would adversely impact patient care.” For example, employees who do not actually provide health care services, such as IT professionals, building maintenance staff, cooks, food service workers, human resources staff, records managers, billers, etc. do not fall under the definition of a “health care provider” and are entitled to FFCRA leave. Employees such as doctors, nurses, nurse assistants, medical technicians, dentists, clinical psychologists, optometrists, and others directly providing diagnostic, preventive, treatment, or other integrated services, continue to fall under the definition of a “health care provider” and are not entitled to FFCRA leave (unless the employer voluntarily chooses to provide it).

Notably, “emergency responders” are also exempt under the FFCRA, and the new regulations do not modify the definition of an “emergency responder.”

2. Reaffirm that FFCRA Leave Need Not be Provided to Employees Who are Not Scheduled to Work: The DOL reaffirmed its position that FFCRA leave is not available to employees who are on furlough, or in other situations where the employee was not scheduled to work and the employer does not have work available for the employee to perform. In other words, the qualified COVID-related reason that caused the employee to request FFCRA leave (e.g., to obtain a COVID diagnosis or to care for someone with COVID) must be the “but-for” cause of the employee’s inability to work. The DOL further affirmed that employers may not arbitrarily claim a lack of work – that is, any claim of a lack of work, which would excuse the employer from granting the employee’s request for FFCRA leave, must be legitimate, non-discriminatory and non-retaliatory.

3. Clarify When Employees Need Employer Consent to take FFCRA Leave Intermittently: The DOL reaffirmed that employees cannot take FFCRA leave intermittently unless the employer approves of such intermittent leave. However, the DOL appears to have modified its definition of what counts as “intermittent” leave with respect to school closures. The DOL stated that if an employee needs FFCRA leave to care for a child whose school is on a rotating schedule in which the child attends school physically on some days and remotely on other days (e.g., the child physically attends school every other week, or M-W-F), then the leave is not considered “intermittent” and the employer may not withhold consent.

4. Clarify When an Employee Must Provide Documentation of the Need for Leave: Finally, the DOL amended the regulations to clarify that an employee need not always provide documentation of the need for leave before going out on the leave. Rather, notice and documentation of the need for FFCRA leave must be provided “as soon as practicable.” For example, if the School Board announces in advance that school will be physically closed, the employee generally needs to provide notice before taking the leave. However, if a school or day care is shut down on an emergency basis (for example, due to an outbreak of COVID-19), then the employee need only provide documentation of the need for leave “as soon as practicable.”

Action Recommended: Healthcare providers with fewer than 500 employees should immediately implement FFCRA policies and related forms (such as leave request forms) and clarify to their workforce which employees will be entitled to take FFCRA leave. All other employers subject to FFCRA should review their FFCRA policies and practices to ensure they are in compliance with the new regulations.

Please contact Doug Desmarais or Kerstin Miller if you want to discuss any of the above provisions. We would be happy to set up a call to discuss the amended regulations and help you prepare or revise any policies as necessary.