The revisions do the following:
On September 11, 2020, the Department of Labor (DOL) issued a second set of rules related to the paid sick and expanded paid FMLA leave provisions of the Families First Coronavirus Act (FFCRA). The agency revised the rules after a federal court struck down certain portions of the original rules. The new rules in some ways revise and in others clarify employer’s obligations. The new guidance is effective on September 16, 2020.
The DOL’s original definition of “Health Care Provider” was determined to be too broad by the federal court. The revised definition narrows the exclusion to only include those individuals capable of providing health care services, which include “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” or otherwise meet the definition of the term found in the Family Medical Leave Act (FMLA).
The FMLA definition includes “doctors of medicine or osteopathy” authorized to practice in their state or other medical professionals such as podiatrists, dentists, clinical psychologists, optometrists, many chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, and other similar professionals. Under the new rule, employers may also elect to exempt nurses, nurse assistants, medical technicians, and laboratory technicians who process test results; they too are considered “health care providers.”
Employers may also elect to exempt employees who perform the following types of services:
Lastly, the revised rule gives the following examples of employees who may not be excluded:
The new rules reaffirmed that leave can only be taken only if the employee has work available from which to take leave. The DOL explained that this interpretation is consistent with its long-standing interpretation of the same terms under the FMLA. The DOL also revised the rule to explicitly apply the work-availability requirement to all FFCRA qualifying reasons for leave.
The new rules reaffirmed that where intermittent leave is permitted by the FFCRA, an employee must still obtain their employer’s approval to take paid sick leave or expanded FMLA leave intermittently, as this is consistent with FMLA principles. The rule also confirms that intermittent paid sick leave or expanded FMLA leave can only be taken to care for a child whose school, place of care, or child care provider is closed or unavailable due to COVID-19.
The DOL’s original regulations required employees to submit supporting documentation for FFCRA leave prior to taking leave. Under the new rules, the supporting documentation should be provided “as soon as practicable.” Therefore, requiring supporting documentation should not be a precondition to providing leave under the FFCRA.
The new rules resolve an inconsistency regarding when an employee may be required to give notice under the expanded FMLA leave and an inconsistency between notice requirements and the timing of documentation requirements.
The original language of the regulations stated that employers could not require advance notice of the need for emergency paid sick leave or expanded FMLA leave. Rather, for both, notice could be required only after (or on) the first day of leave taken. The DOL revised the regulation so that the “only after” language applies solely to emergency paid sick leave. It then added that to take expanded FMLA leave, an employee must provide notice as soon as practicable, which can be before the first day leave begins if the need for expanded FMLA is foreseeable.
Employers in the healthcare industry should prepare to offer emergency paid sick leave and/or expanded FMLA to previously ineligible employees. In conjunction with the release of the new rules, the DOL updated the FFCRA FAQS on its website that may be valuable for employers to review.
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This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.