On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced it would be releasing its revisions to previously released regulations governing paid sick leave and the expanded family and medical leave act (“eFMLA”) under the Families First Coronavirus Response Act (“FFCRA”). These revised rules come in response to the recent decision of the U.S. District Court for the Southern District of New York (“Court”), which invalidated four aspects of the original FFCRA regulations. The revised regulations, which become effective immediately upon being published on Wednesday, September 16, 2020, mean that most health care providers, who initially chose to exempt all of their employees from the provisions of the FFCRA, must now change on the fly and reconsider granting requested leave to some members of their employee group.
REVISED SCOPE OF HEALTH CARE PROVIDER EXEMPTION
The original FFCRA regulations allowed employers to exclude all employees who are “health care providers” from eligibility for paid sick leave or eFMLA. Those regulations included an expansive definition of health care provider:
(i) For the purposes of this definition Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity (emphasis added). This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions .
In its decision, the Court held that this definition of health care provider was overly broad and focused too heavily on the nature of the employer and not enough on the duties of the employee. In response to the Court’s ruling invalidating its prior definition, the DOL developed a new definition of “health care provider” for purposes of the FFCRA exemption. The relevant portion of this definition states:
(i) Basic definition. For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is:
2. 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.
(ii) Types of Employees. Employees described in paragraph (c)(1)(i)(B) include only:
1. Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in (c)(1)(i)(B);
2. Employees providing services described in (c)(1)(i)(B) of this section under the supervision, order, or direction of, or providing direct assistance to, a person described in paragraphs (c)(1)(i)(A) or (c)(1)(ii)(A) of this section; and
3. 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.
(iii) Employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
(iv) Typical work locations. Employees described in paragraph (c)(1)(i) of this section may include Employees who work at, for example, a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. This list is illustrative. An Employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an Employee is a health care provider.
29 C.F.R. § 826.30(c). While the health care provider exemption will allow FFCRA employers, who employ fewer than 500 employees, to exempt those employees who provide care or who are integrated with and necessary to the provision of patient care, many employees whose services are a vital part of the employer’s operations no longer are covered by the narrowed exemption.
In light of these changes, hospitals, health centers, and medical practices will need to reconsider its earlier decision to exempt all employees from the paid sick leave and eFMLA provisions of the FFCRA. Specifically, such employers will note those categories of employee that have been expressly excluded from the revised definition of “health care provider,” including human resources, billing and coding, building maintenance, IT, medical records, and food preparation. Businesses with fewer than fifty (50) employees who are impacted by this revised exemption may wish to consider whether they qualify for a small business exemption.
REVISED NOTICE AND DOCUMENTATION REQUIREMENTS
The FFCRA regulations originally required employees only to provide documentation of the need to take FFCRA leave “prior to” taking paid sick leave or eFMLA. The new notice provisions, contained in 29 C.F.R. § 826.100, state an employee is required to provide an employer documentation of the need for leave “as soon as practicable” rather than prior to taking the leave. The required information includes (i) the employee’s name, (ii) the date(s) for which leave is requested, (iii) the qualifying reason for the leave, and (iv) an oral or written statement that the employee is unable to work because of the qualified reason for leave.
REAFFIRMATION OF PREVIOUS PROVISIONS WITH EXPLANATION
In addition to the changes discussed above, the DOL reaffirmed, with additional explanation, two of its previous positions. In doing so, the DOL seemingly rejected the Court’s reasons for invalidating the positions. The first of these reaffirmed positions is that paid sick leave and eFMLA are available only when an employee has work from which to take leave. This means that an employee is not entitled to take paid sick leave or eFMLA if the employer has shut down operations or otherwise does not need the services of the employee. The second of these reaffirmed positions is that employees may take FFCRA leave intermittently only with employer approval.
NEXT STEPS FOR EMPLOYERS
This new temporary rule will remain in effect through December 31, 2020, when the FFCRA is scheduled to expire. Health care-related employers need to review – or, perhaps, develop – their FFCRA policies, procedures, and postings to ensure necessary modifications are made. Education for employees on the updated notice and documentation requirements, as well as the narrowed scope of the health care provider exemption, should be provided as soon as possible.
When trying to navigate these complicated regulatory issues, it is easy for health care professionals to feel confused and overwhelmed. When you need assistance, remember that Bowles Rice LLP is here to provide the advice and guidance you need to avoid making mistakes in this seemingly ever-changing landscape. Feel free to contact me or any member of the firm's CARES Act / COVID-19 Response Team for more information.