DOL Revisions to FFCRA

The U.S. Department of Labor (DOL) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). Read the revisions to that temporary rule, that were effective Sept. 16, 2020. These new rules are in response to a New York Federal Court decision invalidating four specific rules implementing the FFCRA.

Specifically, the New York ruling invalidated four specific provisions:

  • The health care provider definition as it relates to exclusions from FFCRA leave;
  • The provision involving required documentation prior to taking FFCRA leave;
  • The “work availability” requirement; and
  • The provisions requiring employer approval before taking intermittent FFCRA leave.

LAI members will be most impacted by the first change regarding the definition of “health care provider.” Previously, almost all aging service providers could exempt their workforce from having to implement FFCRA. Now, DOL shifts the definition of health care provider from employer to the employee.

  1. Revised “Health Care Provider” Definition

The most important change for aging service providers is the change of “health care provider” definition for the exemption of FFRCA for providers. Previously, FFRCA exempted the staff of aging service providers from entitlement under FFRCA. However, the court found this definition as too broad and required it to be rewritten.

Now the DOL regulations state that “health care providers are:

  • Health care providers as defined by the FMLA regulations; and
  • Any employee who is capable of providing health care services, meaning that the person is employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary for the provision of patient care, and, if not provided, would adversely impact patient care."

The regulation identifies businesses that typically employ health care providers to include nursing facilities and nursing homes, retirement facilities, home health care providers and other similar entities that employ persons who provide health care services. Although assisted living is not specified, it is probably included in the catch-all at the end. However, employees of independent senior living whether stand-alone or part of retirement communities do not appear to meet the “health care” requirements to be considered exempt.

Employees specified to fall into the second category beyond the obvious direct care staff such as RNs, LPNs, and CNAs, include staffing such as “dining assists” and services like “bathing, dressing, hand feeding, taking vital signs, setting medical equipment for procedures, and transporting patients and samples.”

The regulation provides guidance on specific types of positions that not fall into an exemption include, but are not limited to, “IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers.”

Moving forward, to determine whether an employee is exempt from FFRCA, providers will need to evaluate the types of services the employee actually provides.

  1. Revised Notice and Documentation Requirements

The DOL regulations relax the timeline for employees to provide documentation regarding FFCRA leave. Previously, documentation was needed prior to the employee taking leave under FFCRA.

Now, employees are only required to provide documentation “as soon as practicable.” This documentation must include the reason for the leave, the duration of the leave, and the authority underlying a quarantine or isolation order.

This means that employees are allowed to submit leave documentation after the leave commences.

  1. Revised Work Availability Requirement

While the “work availability” was challenged by the New York District Court, the DOL rule reaffirms the requirement. FFRCA allows employees to take leave if they are unable to work due to one of the specific reasons in the law. However, FFCRA states employees are not eligible for leave if their employers do not have work for them.

Therefore, employees are only entitled to FFCRA leave if they cannot work because of a qualifying reason for leave. Employees are not entitled to FFCRA leave if the employer simply does not have work for them to perform.

  1. Revised Intermittent Leave Requirement

The DOL regulations reaffirm that intermittent leave under the FFCRA is only available for employees whose reason for leave does not involve risks of spreading COVID-19, such as school closures and childcare issues. Intermittent leave is still unavailable for employees who need FFCRA leave for medical reasons, such as persons with an elevated risk of infection for COVID-19 or caring for someone who is sick with COVID-19.

The regulations still require employees must obtain employer approval for intermittent FFCRA leave. However, employer approval would not be required where an employee is taking FFCRA leave in full-day increments to care for children whose schools are operating on a hybrid attendance model. In this situation, each day that the school is closed or that the child is not attending is a separate FFCRA leave that ends when the school reopens or when the child returns to in-person attendance.

Considerations for Aging Service Providers

As noted above, all aging service providers should be reviewing which staff receives FFCRA leave protections, specifically emergency FMLA and paid sick leave, and who remains exempt.

There is nothing in the law that prohibits from providing FFCRA to all staff, including direct care staff and others that fall under the new exemption. Further, there is nothing in the rule that requires retroactivity of these benefits to employees.

Additionally, there is an issue of notification to employees regarding the new FFCRA benefits. It is in unclear in the regulation on whether there must be proactive notification to employees. LAI recommends that if you had previously informed certain staff of the benefit, there is likely an obligation to notify them of the change. If you had not made such notification, you can tell the employee of the change or wait for them to request leave.