By Sara J. Ackermann
September 15, 2020
Late last week, the Department of Labor issued a revised rule to address a New York federal judge’s order from this past August that struck down several provisions of the FFCRA. (For a copy of Ruder Ware’s article on that order, click here.)
The order left employers confused: Should we follow the original FFCRA or the judge’s order? We advised several clients to hold off on making any changes until the DOL issued revised regulations. Well, finally, we have them! Note there were four main areas at issue: 1) the health care provider exception; 2) the work availability requirement; 3) whether intermittent leave had to be approved by employer; and 4) the notice and documentation required. Each area, and the DOL’s final position on that area, is below as follows:
- Health Care Provider Issue: The most controversial portion of the judge’s order was that it struck down the very broad “health care provider” exception on which health care service employers used to deny employees any FFCRA leave. In the new rule, the DOL revised the rule to provide a new definition which is limited to employees who are involved in patient care. This greatly narrows the previous definition. The DOL clearly explains its new definition in a revised FAQ 56 on its website:
FAQ 56: Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
Answer: For the purposes of defining the set of employees who may be excluded from taking paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider includes two groups. This first group is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA. The second group is any other person who is 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. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians. …
A person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital or a similar health care facility.
- Work Availability Issue: While the judge’s order struck the “work availability” requirement, the DOL has held firm that FFCRA leave may only be taken if the employer has work available. Bottom line: No change from original DOL rule.
- Intermittent Leave Issue: The DOL also refused to adopt the position of the judge’s order that allowed for situations where intermittent leave would need not be approved by employer. Bottom line: No change from original DOL rule.
- Notice and Documentation Issue: The DOL also did clarify the timeline for when an employee need provide notice and documentation. Regarding timing: The DOL reaffirmed that the employee must only provide notice “as soon as practical.” An employer may not require advanced notice or deny the leave based on lack of notice. Regarding documentation: The DOL reaffirmed that an employer may only ask for the following information: (1) Employee’s name; (2) Date(s) for which leave is requested ; (3) Qualifying reason for the leave; and Oral or written statement that the Employee is unable to work because of the qualified reason for leave. The DOL also reaffirms that the employer can request additional information needed to comply with IRS documentation for tax credits. As a reminder, the IRS FAQ on that topic is on its website
What Employers Need to Know: The new FFCRA rule can be found here and FFCRA FAQ is on the DOL website at this link. COVID-related legislation is constantly changing and Ruder Ware’s COVID-19 Focus Team is doing their best to keep you appraised of these developments. Please contact us with questions.
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