U.S. Department of Labor Issued Revisions and Clarifications to the Families First Coronavirus Response Act Regulations

On September 11, 2020, the U.S. Department of Labor issued revised regulations under the Families First Coronavirus Response Act (FFCRA) in response to a federal court’s decision that found certain FFCRA regulations to be invalid. The revised regulations take effect September 16, 2020.

On August 3, 2020, a federal court in New York struck down four parts of the FFCRA regulations, finding that they were invalid:

• Limits on an employee’s eligibility to use FFCRA’s paid sick leave and/or expanded family and medical leave when no work is available;
• Limits on the use of intermittent leave;
• Definition of the term “health care provider” under the FFCRA; and
• Requirements related to notice and documentation.

In light of the federal court’s opinion, the DOL issued its revised regulations to reaffirm some of its original positions and, at the same time, make changes in accordance with the federal court’s decision. The DOL in its revised regulations, effective September 16, 2020:

• Reaffirmed that leave under FFCRA’s Emergency Paid Sick Leave (EPSLA) and Expanded Family and Medical Leave Act (EFMLEA) may only be taken when an employer actually has work available for an employee to perform.
• Reaffirmed that intermittent leave under the FFCRA can only be taken with employer approval.

The DOL also discussed the administration of FFCRA leave when an employee’s child participates in hybrid learning in which the schools operate on alternating scheduling. The DOL explained that “[e]ach day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.” Accordingly, the DOL explained that intermittent leave is not necessary because “the school literally closes…and opens repeatedly.” According to the DOL, a full single day of leave is not considered intermittent leave and the employee does not need the employer’s consent to take off Monday, Wednesday, and Friday because each of these days are separate school closure, thereby each entitling the employee to leave under the FFCRA.

• Revised definition of the term “health care provider.” Recall that the FFCRA permits employers to exclude “health care providers” from some or all forms of EPSLA or EFMLEA leave. The DOL revised its definition of the term “health care provider” to focus on individuals “capable of providing health care services.” The term “health care services, is defined in the revised regulations as including the following:
  • Diagnostic services: Including taking or processing samples, performing or assisting the performance of x-rays or other diagnostic tests or procedures.

• • Preventive services: Including screening, check ups, and counseling to prevent illness, disease, or other health problems.

• • Treatment services: Including performing surgery, or other invasive interventions, prescribing medications, and providing or administrating prescribed medications.
• Revised definition of “health care provider” to identify the type of employees who an employer may continue to exclude from FFCRA leave as the following:
  • Nurses, nurse assistants, medical technicians, and any other persons who directly provide the health care services noted above.

• • Employees providing health care services under the supervision, order, or direction of, or providing direct assistance to, a health care provider.

• • Employees who are otherwise integrated into and necessary to the provision of healthcare services, such as laboratory technicians.

The revised regulations also identify employees who are not “health care providers”, including: information technology professional, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. The DOL explained that their services are too attenuated to be integrated and necessary components of patient care.

• Revised regulation, so that it provides that documentation and information that an employee is to give to support the need for leave under FFCRA is to be provided “as soon as practicable.”

Given that events related to the COVID-19 pandemic are rapidly evolving, we will continue to monitor the FFCRA and any subsequent legislation and regulations as they become available. Currently, the FFCRA is set to expire on December 31, 2020. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.