COVID-19: FFCRA Rules Changed Again!

Last month, a federal district court in New York invalidated portions of the U.S. Department of Labor’s (DOL) rules for the Families First Coronavirus Response Act (FFCRA). On September 11, 2020, the DOL issued an updated temporary rule, that is set to be published on September 16^th, to address issues raised by the federal district court.

• Section 826.20. Paid Leave Entitlements. This section clarifies that employees may not take emergency paid sick leave for any stated qualifying reason where the employer does not have work available for them.

• Section 826.30. Employee Eligibility for Leave. This section revises the definition of healthcare provider to include the traditional definition of healthcare provider under the Family and Medical Leave Act (FMLA), and “[a]ny other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services (i.e., 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), preventive services (i.e., screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems), treatment services (i.e., performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments), or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (i.e., bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).”

Examples of covered providers include: nurses, nurse assistants, medical technicians, and any other persons who directly provide the described services; employees providing the described services under the “supervision, order, or direction of, or providing direct assistance to, a person” who is defined as a 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.”

Examples of employees who are not considered healthcare providers, because they do not provide healthcare services, include: IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

• Section 826.90. Employee Notice of Need for Leave. This section clarifies that for purposes of emergency paid sick leave, employers may only require notice of leave as soon as practicable after the first workday (or portion thereof) taken for leave. For purposes of emergency FMLA leave (i.e., leave for childcare/school closure), notice of leave must be given as soon as practicable and must be given in advance where the reason for leave is foreseeable.
• Section 826.100. Documentation of Need for Leave. This section clarifies that employees must provide documentation as soon as practicable, which is typically when notice is provided under Section 826.90, including the following information: (1) employee’s name; (2) date(s) for which leave is requested; (3) qualifying reason for the leave; and (4) an oral or written statement that the Employee is unable to work because of the qualified reason for leave.

Employers should review the updated rule and prepare to implement the new changes.

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