United States: New DOL Regulations Address FFCRA Issues

On Sept. 16, 2020, the U.S. Department of Labor (DOL) issued regulations, effective immediately, relating to four specific provisions of the Families First Coronavirus Response Act (FFCRA). The new regulations were issued in response to the Aug. 3, 2020, ruling of a New York court, striking down four components of the DOL's April 3, 2020, FFCRA regulations. The DOL's new regulations address issues that led the New York court to strike down the earlier regulation's "work availability" requirement, the "health care provider" definition, the employer consent requirement for intermittent leave, and the "prior documentation" requirement.

Intermittent Leave Regulation

The New York court invalidated the employer consent requirement for intermittent leave on the ground that it was "entirely unreasoned." In the new regulations, the DOL reaffirms its earlier position that an employee must obtain his or her employer's approval in order to take FFCRA leave intermittently. The DOL attempts to address the concerns cited by the New York court by providing a lengthy explanation for the employer consent requirement. In summary, the DOL continues to take the position that an employee may take intermittent leave under the FFCRA only if the employer consents to such an arrangement.

Work Availability Requirement

The New York court also invalidated the DOL's earlier work availability requirement as "entirely unreasoned" because the earlier regulations applied the work availability requirement only to three of the six reasons for which an employee could take FFCRA leave. The DOL's new regulations address the court's concern by clarifying that the work availability requirement applies to all of the six reasons an employee may take FFCRA leave. In summary, an employee may take leave under the FFCRA only if the employer otherwise has work available for the employee to perform. For example, an employee who is furloughed is not entitled to FFCRA leave.

Prior Documentation Requirement

The New York court also struck down the portion of the earlier regulations stating that employees seeking FFCRA leave must provide their employers with supporting documentation prior to taking leave. The DOL fixed this concern by revising its regulations to state that an employee must provide documentation to support the need for FFCRA leave "as soon as practicable." This change now aligns the FFCRA's documentation requirements with the documentation requirements for all other forms of FMLA leave.

Definition of "Health Care Provider"

The FFCRA permits an employer to exclude a health care provider from eligibility for FFCRA leave. The purpose of this exemption was to make sure that health care providers would be available to respond to the pandemic. The DOL's earlier regulation adopted a very broad definition of health care provider that focused on the nature of the employer for whom the employee worked rather than the duties of the employee. The New York court found the DOL's interpretation of the health care provider exemption invalid on the grounds that it was inconsistent with the statutory language of the FFCRA. 

The DOL's new regulation revises the definition of health care provider, for purposes of the exemption only, to mean employees who are "employed to provide diagnostic services, preventative 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 lengthy definition is hardly crystal clear, but the DOL's new regulations do provide some guidance. For example, the new regulations state that the definition would not include IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers, even if employed, for example, at a hospital, doctor's office, nursing home or pharmacy, because employees performing those duties are not sufficiently connected to the provision of health care services.

On the other hand, the regulations state that the definition does include employees whose duties involve providing "diagnostic services" by "taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting tests or procedure results." The definition also includes employees providing "preventative services" such as "screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems." In addition, the definition encompasses employees providing "treatment services" such as performing surgery, prescribing or administering medicine, physical therapy or breathing treatments. 

Finally, the definition includes employees providing "services that are integrated with and necessary to diagnostic, preventive, or treatment services (as described above) and, if not provided, would adversely impact patient care." The regulations state that this includes employees whose duties include "bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples." Again, the definition of health care provider for purposes of the FFCRA leave exemption is not entirely clear and will require employers to make an educated guess as to whether some employees fall within the exemption. 

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