Revised FFCRA Rules

AT A GLANCE

The revisions do the following:

• Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or 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 which, if not provided, would adversely impact patient care.
• Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
• Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
• Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Introduction

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.

Narrow Definition of “Health Care Provider”

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:

• Diagnostic services including, for example, taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting;
• Preventative services including, for example, screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems;
• Treatment services including, for example, performing surgery or other invasive or physical interventions, administering or providing prescribed medication, and providing or assisting in breathing treatments; and
• Other integrated and necessary services that, if not provided, would adversely affect the patient’s care includes, for example, employees who perform bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

Lastly, the revised rule gives the following examples of employees who may not be excluded:

• information technology (IT) professionals
• building maintenance staff
• human resources personnel
• cooks and food service workers
• records managers
• consultants

Work-Availability Requirement Reaffirmed

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.

Intermittent Leave Requires Employer Consent

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.

Employee Documentation Timing

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.

Notice Requirements Revised

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.

Next Steps

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.