By Wayne Young, Daniel L. Herrington and Khayyam M. Eddings
As you know from following our alerts and blog (read previous article here) a federal district court recently ruled that portions of the April 2020 regulations from the Department of Labor (DOL) implementing the Families First Coronavirus Response Act (FFCRA) were overly broad and invalid. This ruling left a vacuum with no clear guidance on the state of the law. On Friday, September 11, 2020, the DOL issued new guidance addressing the federal court’s criticisms of the previous rules. The DOL left some rules in place with clarification and additional explanation, and it modified some of the rules, in particular the definition of “healthcare provider.”
The amendments to the new rule will be effective Wednesday, September 16, 2020.
The major change was to the Department’s definition of “healthcare provider.” The DOL reiterated that the definition needed to be broader than the standard definition of “healthcare provider” in the Family and Medical Leave Act given the terms have different purposes. The DOL stated that the definition of “healthcare provider” for purposes of a possible exemption from coverage of the FFCRA should be based on the duties of the position and not the nature of the employer, as was the case in the previous rule. The new rule states that all “healthcare providers” under the FMLA can be exempted along with “any other employee who is capable of providing health care services, meaning he or she 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.”
The new rule gives examples, such as nurses, nurse assistants, medical technicians, employees providing services under the supervision of another healthcare provider, and “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 diagnoses and treatment.” The DOL’s comments make clear that a license or certification is not necessary to be a covered “healthcare provider” for this definition. The rule also gives examples of employees who would not meet this new definition: IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants and billers. Finally, the rule gives examples of services that are integrated with and necessary to health care services as services that would adversely impact patient care, “including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and supplies.”
Work Availability Requirement Remains
The DOL held firm on its requirement that the qualifying reason for the leave under the FFCRA must be the “but for” need for leave. In other words, to qualify for leave under the FFCRA the employee must otherwise have been needed and scheduled for work. If the employee was not needed or scheduled for work for some other reason, such as an employer closing or a layoff/furlough, then the employee would not qualify for paid leave under the FFCRA. The DOL clarified this requirement applied to any category of leave provided for in the FFCRA.
Employer Consent Still Required for Intermittent Leave
The DOL also held firm on the requirement that intermittent leave under the FFCRA cannot be taken without agreement from the employer. The DOL gave a thorough explanation of this using the current structure of intermittent leave under the FMLA as the backdrop. This explanation addressed the criticism of the federal district court that this provision of the rule was not adequately justified. The DOL gave a helpful and noteworthy example, however, that FFCRA leave needed for the care of a child whose school or place of care is closed is not intermittent leave when the school is on a hybrid schedule or alternating days or weeks of in person class schedule. In other words, if an employee’s child has in-person school on Mondays, Wednesdays, and Fridays, the employee could be entitled to FFCRA leave to care for the child on Tuesdays and Thursdays if the employee otherwise qualifies for leave. This is not intermittent leave, by the definition the DOL uses, and it would therefore not require the agreement of the employer to be taken as intermittent leave.
Employees Need Not Provide Documentation Prior to Leave
The final piece of the rule addressed the timing of when documentation was required from the employee to support the need for leave. The DOL agreed with the federal district court and modified the rule to require documentation when the employee gives notice, which could be after the leave commenced. The rule also clarifies that, for the Expanded Family and Medical Leave, notice of the need for leave is required as soon as practical, which could be in advance depending on the circumstances. Whereas an employer cannot require the employee’s notice of the need for Emergency Paid Sick Leave in advance.
Takeaway: Healthcare provider employers not otherwise excluded from coverage of the FFCRA should evaluate their positions to determine which ones will now be covered and eligible for FFCRA leave. They should begin to make preparations for providing the required job protected and paid leave for those employees as well as take steps to receive the tax credit associated with the cost of such paid leave. Those employers should make the required posting of the requirements of the FFCRA if they have not already done so.
All employers covered by the FFCRA should not require any documentation from employees supporting the need for leave until the employee gives notice of the need for leave, which may not be until after the first day leave is needed depending on the circumstances.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.
H. Wayne Young is a partner with the firm and a member of the Labor and Employment Law Practice Group. His practice focuses on employment and labor law including discrimination matters, harassment, wage and hour compliance, family and medical leave and covenants not to compete. He advises his clients in these matters from the compliance stage, to defending government investigations and litigation if necessary.
Daniel L. Herrington is a partner in the Labor and Employment Relations Practice Group focused on representing employers in all areas of labor and employment law, including ADA, FMLA, Wage and Hour, Title VII, OSHA and NLRA. He proactively works with his management clients to help ensure their employment decisions can withstand legal scrutiny. Dan has successfully defended those decisions before state and federal agencies and courts, including the EEOC, OSHA, NLRB, DOL, Arkansas Supreme Court and U.S. Court of Appeals for Eighth Circuit. He also has extensive experience in litigating covenant not to compete and trade secret cases.
Khayyam M. Eddings is a partner in the Labor and Employment Litigation Practice Group where he counsels employers in all aspects of the labor and employment laws including compliance with Title VII of the Civil Rights Act of 1964, Family Medical Leave Act, Americans with Disabilities Act, Fair Labor Standards Act, National Labor Relations Act and the Occupational Safety and Health Act.