This morning, the Department of Labor formally
amended its Temporary Rule governing the Families First Cornavirus Relief
Act (FFCRA) in response to a federal court decision from New York last month. In particular, the DOL narrowed the
definition of “health care provider” to treatment, diagnostic and prevention
professionals as provided in the FMLA, instead of any employee working for a health care employer, but expanded it
beyond the typical FMLA context to include other medical professionals, such as
nurses and those whose services are integrated with medical care. Accordingly, the FFCRA leave exemptions for
health care providers will no longer cover administrative and service employees
of hospitals and medical practices. The rule will focus on the care provided
instead of the type of employer. The DOL
reaffirmed that paid FFCRA leave is not available to employees who are
furloughed or laid off and explicitly expanded that concept to all qualifying
reasons for FFCRA leave. The DOL also
re-affirmed that employer approval is required before employees may take intermittent
FFCRA leave. Finally, the DOL clarified
the notice and documentation requirement so that the written request for FFCRA leave
need not necessarily be given prior to the leave, but as soon as practicable. The modified rule becomes effective
immediately and the FFCRA leave rights expire at the end of this year.
As explained by the DOL:
On August 3, 2020, the District Court ruled that four parts of the temporary rule are invalid: (1) The requirement under § 826.20 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 under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a ‘‘health care provider,’’ set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep’t of Labor, No. 20–CV– 3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).
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1. The Department reaffirms 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.
2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the Department’s regulations, an employee must obtain his or her employer’s approval to take paid sick leave or expanded family and medical leave intermittently under § 825.50 and explains further the basis for this requirement.
3. The Department revises the definition of ‘‘health care provider’’ under § 825.30(c)(1) to mean employees who are health care providers under 29 CFR 825.102 and 825.125,3 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.
4. The Department revises § 826.100 to clarify 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.
5. The Department revises § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.
Notice of Need for
Leave. The DOL has modified
§ 826.100 to clarify that the documentation required under § 826.100 need not be given ‘‘prior to’’ taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice under § 826.90. The Department is also revising § 826.90(b) to correct an inconsistency regarding the timing of notice for employees who take expanded family and medical leave.
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. . . , the Department is revising § 826.100(a) to require the employee to furnish the listed information as soon as practicable, which in most cases will be when notice is provided under § 826.90. That is to say, an employer may require an employee to furnish as soon as practicable: (1) The employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work. The employer may also require the employee to furnish the information set forth in § 826.100(b)–(f) at the same time.
The modified regulations are as follows:
§ 826.90 Employee notice of need for leave. * * * * * (b) Timing and delivery of notice. Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally. Notice for taking Expanded Family and Medical Leave is required as soon as practicable. If the reason for this leave is foreseeable, it will generally be practicable to provide notice prior to the need to take leave. * * * * *
§ 826.100 Documentation of need for leave. (a) An Employee is required to provide the Employer documentation containing the following information as soon as practicable, which in most cases will be when the Employee provides notice under § 826.90: (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
Intermittent Leave. The FFCRA did not create a right to take
intermittent leave, but the DOL regulation permits such leave if the employer
permits it when the employee is teleworking or for childcare purposes. Unlike the FMLA, the employer may not
condition FFCRA (or emergency paid sick leave) on a medical certification of a
need for intermittent leave. Moreover, as
discussed by the DOL, none of the reasons for FFCRA leave lend themselves to a medical
need for intermittent leave:
. . . Rather than justifying intermittent leave, these medical considerations militate against intermittent FFCRA leave where the employee may have an elevated risk of being infected with COVID–19 or is caring for someone who may have such elevated risk. Permitting such an employee to return to work intermittently when he or she is at an elevated risk of transmitting the virus would be incompatible with Congress’ goal to slow the spread of COVID–19. . . . Employees who take paid sick leave for these reasons, however, may telework on an intermittent basis without posing the risk of spreading the contagion at the worksite or being infected themselves.
The Department believes the employer-approval condition for intermittent leave under its FMLA regulation is appropriate in the context of FFCRA intermittent leave for qualifying reasons that do not exacerbate risk of COVID–19 contagion. It is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid ‘‘unduly disrupting the employer’s operations.’’ 29 CFR 825.302(f). It best meets the needs of businesses that this general principle is carried through to the COVID–19 context, by requiring employer approval for such leave. In the context of intermittent leave being required for medical reasons, the FMLA long has recognized certified medical needs for intermittent leave as paramount, unless the leave is for planned medical treatment, in which case the employee must make reasonable efforts to schedule the leave in a manner that does not unduly disrupt operations. 29 U.S.C. 2612(e)(2)(A); 29 CFR 825.302(e). However, when intermittent leave is not required for medical reasons, the FMLA balances the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave. 29 CFR 825.120(b); .121(b). The Department’s FFCRA regulations already provide that employees may telework only where the employer permits or allows. See § 826.10(a). Since employer permission is a precondition under the FFCRA for telework, the Department believes it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave. On the other hand, the Department does not believe that an employee should be required to obtain certification of medical need in order to telework intermittently because it may be unduly burdensome in this context for an employee to obtain such certification. Medical certification would also be redundant because the employee must already obtain employer permission to telework in the first place. . . .
Employer approval is also an appropriate condition for taking FFCRA leave intermittently to care for a child, whether the employee is reporting to the worksite or teleworking. This condition already applies where an employee takes FMLA leave to care for his or her healthy newborn or adopted child, which is similar to where an employee takes FFCRA leave to care for his or her child because the child’s school, place of care, or child care provider is closed or unavailable.
Health Care Provider.
The FFCRA exempted certain employees
from the right to take paid FFCRA leave, including health care providers. The DOL initially gave this a very broad
interpretation to include all employees of a health care organization. The NY court found this to be overly
broad. Accordingly, the DOL has narrowed
that definition. The definition was revised
first to be consistent with the FMLA.
Second, revised § 826.30(c)(1)(i)(B) . . .. identifies additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers. It expressly states that an employee is a health care provider if he or she is ‘‘capable of providing health care services.’’ The definition then further limits the universe of relevant ‘‘health care services’’ that the employee must be capable of providing to qualify as a ‘‘health care provider’’—i.e., the duties or role of the employee. Specifically, a health care provider must be ‘‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.’’
Revised § 826.30(c)(1)(ii) lists the three types of employees who may qualify as ‘‘health care providers’’ under § 826.30(c)(1)(i)(B). First, § 826.30(c)(1)(ii)(A) explains that included within the definition are nurses, nurse assistants, medical technicians, and any other persons who directly provide the services described in § 826.30(c)(1)(i)(B), i.e., diagnostic, preventive, treatment services, or other services that are integrated with and necessary to the provision of patient care are health care providers.
Second, § 826.30(c)(1)(ii)(B) explains that, included within the definition, are employees providing services described in paragraph (c)(1)(i)(B) under the supervision, order, or direction of, or providing direct assistance to, a person described in paragraphs (c)(1)(i)(A) (that is, employees who are health care providers under the usual FMLA definition) or (c)(1)(ii)(A) (that is, nurses or nurse assistants and other persons who directly provide services described in paragraph (c)(1)(i)(B)). Finally, under § 826.30(c)(1)(ii)(C), ‘‘health care providers’’ include employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care. Health care services reasonably may include services that are not provided immediately, physically to a patient; the term health care services may reasonably be understood to be broader than the term health care. For example, a laboratory technician who processes test results would be providing diagnostic health care services because, although the technician does not work directly with the patient, his or her services are nonetheless an integrated and necessary part of diagnosing the patient and thereby determining the proper course of treatment.26 Processing that test is integrated into the diagnostic process, like performing an x-ray is integrated into diagnosing a broken bone.
Individuals who provide services that affect, but are not integrated into, the provision of patient care are not covered by the definition, because employees who do not provide health care services as defined in paragraph (c)(1)(i)(B) are not health care providers. Accordingly, revised § 826.30(c)(1)(iii) provides examples of employees who are not health care providers. The Department identifies information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. While the services provided by these employees may be related to patient care—e.g., an IT professional may enable a hospital to maintain accurate patient records—they are too attenuated to be integrated and necessary components of patient care. This list is illustrative, not exhaustive.
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Under this revised definition, § 826.30(c)(1)(v) provides specific examples of services that may be considered ‘‘diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care’’ under § 826.30(c)(1)(i). These examples are non-exhaustive and are meant to be illustrative.
Diagnostic services include, for example, taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results. These services are integrated and necessary because without their provision, patient diagnosis would be undermined and individuals would not get the needed care. To illustrate, a technician or nurse who physically performs an x-ray is providing a diagnostic service and therefore is a health care provider.
Preventative services include, for example, screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems. As with diagnostic services, preventative services are integrated and necessary because they are an essential component of health care. For example, a nurse providing counseling on diabetes prevention or on managing stress would be providing preventative services and therefore would be a health care provider.
Treatment services are the third category of services which make up health care services. Treatment services include, for example, performing surgery or other invasive or physical interventions, administering or providing prescribed medication, and providing or assisting in breathing treatments.
The last category of health care services are those services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care. This final category is intended to cover other integrated and necessary services that, if not provided, would adversely affect the patient’s care. Such services include, for example, bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples. These tasks must be integrated and necessary to the provision of patient care, which significantly limits this category.
For example, bathing, dressing, or hand feeding a patient who cannot do that herself is integrated into to the patient’s care. In another example, an individual whose role is to transport tissue or blood samples from a patient to the laboratory for analysis for the purpose of facilitating a diagnosis would be providing health care services because timely and secure transportation of the samples is integrated with and necessary to provide care to that patient. These tasks also must be something that, if not performed, would adversely affect the patient’s care, and they also must be integrated into that patient’s care. Thus, tasks that may be merely indirectly related to patient care and are not necessary to providing care are not health care services. Further, the Department notes that some of the exemplar services listed in § 826.30(c)(1)(v)(D) may fit into more than one category.
The new FFCRA definition for healthcare provider:
§ 826.30 Employee eligibility for leave. * * * * * (c) * * * (1)
Health care provider—
(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 (A) Any Employee who is a health care provider under 29 CFR 825.102 and 825.125, 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.
(ii) Types of Employees. Employees described in paragraph (c)(1)(i)(B) include only: (A) Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in (c)(1)(i)(B); (B) 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 (C) 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.
(v) Further clarifications. (A) Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
(B) Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
(C) Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
(D) Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.
(vi) The definition of health care provider contained in this section applies only for the purpose of determining whether an Employer may elect to exclude an Employee from taking leave under the EPSLA and/or the EFMLEA, and does not otherwise apply for purposes of the FMLA or section 5102(a)(2) of the EPSLA.
Work Availability
Requirement. The NY case challenged
the requirement that the employee have work to perform before s/he could
qualify for paid FFCRA leave. The Court found that the DOL rule was
inconsistent and inadequately explained. The DOL explained that there is no “leave”
unless there is work to take “leave” from.
The DOL further explained its position:
an employee is entitled to FFCRA leave only if the qualifying reason is a but-for cause of the employee’s inability to work. 85 FR 19329. In other words, the qualifying reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason. This means an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply. Id. This work-availability requirement was explicit in the regulatory text as to three of the six qualifying reasons for leave. As explained below, the Department’s intent, despite not explicitly including the work-availability requirement in the regulatory text regarding the other three qualifying reasons, was to apply the requirement to all reasons.
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NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
