In response to a New York federal court ruling that invalidated several regulatory provisions of the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) has issued revised regulations, which become effective September 16, 2020.

In the revised regulations, the DOL:

• Reaffirms that employees may take FFCRA paid leave only if work would otherwise be available to them. If the employee is not scheduled to work, whether due to a furlough, business closure, or otherwise, there is no work from which to take leave.
• Revises the definition of “health care provider” to a narrower definition that includes 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.

The DOL provided the following definitions:

• Diagnostic services include taking or processing samples, performing or assisting in x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
• Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
• Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
• Services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.

The revised FFCRA regulations specifically identify the types of employees who may continue to be excluded from taking FFCRA paid leave:

• nurses, nurse assistants, medical technicians, and others directly providing diagnostic, preventive, treatment or other integrated services;
• employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care 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.

Excluded from the definition of health care provider are those employees who do not provide such health care services, even if their services could affect the provision of health care services, “such as IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultant, and billers.”

• Confirms that intermittent leave under FFCRA can only be taken with employer approval to avoid unduly disrupting the employer’s operations.
• Clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation. The DOL modified the timing of required documentation so that it is now to be submitted “as soon as practicable, which in most cases will be when the employee provides notice.” For school or childcare closure where leave is foreseeable, the notice and documentation can be required in advance. For illness-related circumstances, both the notice and documentation may be submitted after the employee begins leave.

The DOL continues to revise their extensive FFCRA Q&A to reflect these changes.

Although it is possible that the revised regulations could again be challenged, for now, employers should follow the most recent guidelines. It is especially critical for employers in the health care industry to adapt to these changes and carefully apply the narrower exclusion to only those employees capable of providing health care services.

Please contact Laura Stover with any questions.