Department of Labor Revises FFCRA Regulations and Redefines “Health Care Provider”

The Department of Labor (DOL) recently issued a temporary rule (the “Revised Rule”) that revised the regulations implementing the Families First Coronavirus Response Act (“FFCRA”). These revisions went into effect on September 16, 2020. By way of background, the FFCRA created two new emergency paid leave requirements, the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). These new requirements offer greater leave protections and relief to certain employees during the COVID-19 pandemic. On April 1, 2020, the DOL issued a temporary rule promulgating regulations for the implementation of the FFCRA (the “Initial Rule”).

The State of New York challenged several of the provisions in the Initial Rule as being beyond the scope of the FFCRA or for being overbroad. On August 3, 2020, a federal court in New York, issued an Order striking down several provisions of the FFCRA Initial Rule. The Court struck down the following provisions of the Initial Rule: (1) the definition for “health care provider;” (2) the work availability requirement; (3) the employer consent requirement for intermittent leave; and (4) the documentation requirement for taking FFCRA leave.

In response to the Court’s decision, the DOL revised the FFCRA regulations to clarify workers’ rights and employers’ responsibilities under the FFCRA. The revisions are intended to: (1) reaffirm that employees may only take FFCRA leave if work would be otherwise available to them; (2) reaffirm that an employee must have employer approval to take FFCRA leave intermittently; (3) revise the definition of “healthcare provider” for a narrower meaning; (4) clarify that employees must provide supporting documentation for their need for FFCRA leave as soon as practicable to their employer; and (5) correct inconsistencies regarding when employees must provide notice to their employers of a need to take expanded leave.

Generally, the revisions reaffirm and clarify the provisions that were determined to be invalid by the federal court in New York. However, the DOL does amend the definition of “health care provider,” which the federal court had determined to be overbroad. As such, the term “health care provider” has been revised to be much narrower. “Health care provider” now means:

• “(A) Any Employee who is a health care provider under 29 CFR 825.102 and 825.125 (i.e., a doctor of medicine, doctor of osteopathy, podiatrist, dentist, clinical psychologist, optometrist, chiropractor, nurse practitioner, nurse midwife, clinical social worker, physician assistant, Christian Science practitioner, or any other health care provider that an employer will accept certification of the existence of a serious health condition from); or
• (B) 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.”

This definition is particularly important as the FFCRA regulations permit employers to exclude an employee meeting the definition of “health care provider” from some or all forms of EPSLA or EFMLEA leave. Again, this definition became effective on September 16, 2020.

For any questions regarding the FFCRA or the DOL’s Revised Rule, please contact your regular HLP attorney, or Partners@thehlp.com, or call (212) 734-0128 or (248) 996-8510.