U.S. Department of Labor Issues New FFCRA Regulations, FAQ Guidance The U.S. Department of Labor (“DOL”) issued much-anticipated regulations last Friday laying out who qualifies for emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA), revising parts of a rule recently struck down by a New York federal judge. Here’s what healthcare providers and their practices should know: Background: Recent Federal Court Ruling As we discussed in a previous update, on August 3, 2020, a New York federal district court ruled that four parts of the previously-issued Final Rule are invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. At the time, we noted that the court did not identify its ruling as a nationwide injunction or nationwide adjudication, so it was unclear whether the previously-issued Final Rule still applied to any jurisdiction in the US other than the Southern District of New York. At that time, we advised Tennessee providers to adopt a “wait and see” approach until the DOL or a Tennessee federal court took further action. DOL Responds, Issues New FFCRA Temporary Rule In its press release announcing the new Temporary Rule, the DOL conceded that its revisions were made “in light of the U.S. District Court for the Southern District of New York in an Aug. 3, 2020, decision that found portions of the regulations invalid.” Here are the highlights from the new Temporary Rule:
- The DOL reaffirmed that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave and explains further why this requirement is appropriate. This Temporary Rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.
- The DOL reaffirmed that, where intermittent FFCRA leave is permitted by the DOL’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently.
- The DOL revised the definition of “health care provider” to mean individuals who are health care providers under FMLA (i.e., physicians, nurse practitioners and physician assistants), and “other employees who 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.” The definition now focuses on the role and duties of the employee, rather than the employer. The definition is still broad enough to include nurses, medical assistants and any other clinical staff member of a healthcare practice. However, the DOL specifically excludes employees such as IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers as “too attenuated to be integrated and necessary components of patient care.”
- The DOL clarified that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable.
DOL Issues New FFCRA FAQ Guidance In addition to the new Temporary Rule, the DOL updated its FAQs regarding FFCRA, giving clear guidance on the timing of the changes going into effect:
- When were the invalidated provisions of the Department’s FFCRA paid leave regulations vacated? The challenged provisions were vacated when the District Court issued its opinion and order on August 3, 2020. As of August 3, 2020, the work availability requirement provisions, the provision requiring an employee to obtain his or her employer’s approval before taking FFCRA leave intermittently, the provision defining “health care provider” for purposes of employees whose employer may exclude them from FFCRA leave, and the provision requiring documentation of a need for leave prior to taking leave were vacated. The remainder of the FFCRA paid leave regulations were unaffected.
- Where did the District Court’s order vacating certain provisions of the FFCRA paid leave regulations apply? Nationwide. Based on the specific circumstances in the case and language of the District Court’s order, the Department considers the invalidated provisions of the FFCRA paid leave regulations vacated nationwide, not just as to the parties in the case.
- When do the revisions to the Department’s FFCRA paid leave regulations become effective? The revised explanations and regulatory text become effective immediately upon publication in the Federal Register on September 16, 2020. This means they are effective from September 16, 2020 through the expiration of the FFCRA’s paid leave provisions on December 31, 2020.
The COVID-19 pandemic and response is an evolving situation. All levels of government are engaged in the process of preparing new legislation, regulations and orders both to stem the spread of the virus and to provide relief to employers and employees. We will continue to monitor the situation and provide updates as applicable, especially as such updates affect healthcare providers and their practices. For more updates on this topic and other legal updates related to the COVID-19 pandemic, please visit our COVID-19 Legal Resource Page by clicking here.