Employment Law

The U.S. Dept. of Labor (DOL) updated its April 1, 2020 Temporary Rule regarding paid leave under the Families First Coronavirus Response Act (FFCRA) in response to a federal court ruling finding certain provisions of the original rule invalid. The updated rule, located at https://www.dol.gov/agencies/whd/ffcra, is published in the September 16, 2020 Federal Register.

Highlights of the changes/updates follow:

29 CFR 826.20(a)(3) and (4) of the Temporary Rule have been updated, and a new 29 CFR 826.20(a)(10) has been added, to clarify that, even if an employee has an otherwise qualifying reason to take emergency paid sick leave and/or expanded FMLA leave, such paid leave is NOT available if the employee’s employer does not have work for the employee.  For example, if the employer is shut down, or if the employer furloughed the employee (for legitimate business reasons and not because of the employee’s need for FFCRA leave), resulting in no work being available, the employee would not qualify for paid leave under the FFCRA. This is a clarification, not a change, in the DOL’s position.

Without changing the text of the Temporary Rule, the DOL reaffirmed that employees must obtain the employer’s consent before taking FFCRA leave on an intermittent basis. This is a clarification, not a change, in the DOL’s position.  As a reminder, intermittent FFCRA leave from the workplace is only permitted when caring for a child whose school, place of care, or childcare is closed or unavailable due to COVID-19. By contrast, intermittent FFCRA leave from telework may be permitted when leave is needed for any qualifying reason. NOTE: Taking leave in full day increments to care for a child whose school is on a “hybrid” model (alternating days in school versus online) due to COVID-19 on an “online” day when there is no other suitable person available to care for the child is not intermittent leave and does not require employer consent.  Each day the school is closed to the employee’s child is a separate reason for FFCRA leave that ends when the school is open to the child.  This is different from the scenario where the school is closed indefinitely and the employee wants to take leave only for certain portions of such time (which would involve intermittent leave requiring employer consent).

29 CFR 826.30(c) of the Temporary Rule has been updated to significantly revise the “health care providers” who an employer may exempt from paid FFCRA leave.  This is a change in the DOL’s position.  Previously, the Temporary Rule focused on the type of employer rather than the nature of the employee’s duties. That approach generally resulted in healthcare employers being able to exempt all of their employees from coverage.  The new rule focuses on the type of work performed by the employee and limits the exemption to the following:

1. Any employee who is a health care provider under 29 CFR 825.102 and 825.125.  These are definitions under the FMLA and mean the following:

a. Doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;

b. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;

c. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law; and

d. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.

2. Any other employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.  This means:

a. Nurses, nurse assistants, medical technicians, and any other persons who directly provide the types of services identified in (2) above; and

b. Employees providing the types of services described in (2) above under the supervision, order, or direction of, or providing direct assistance to, a person described in 1(a-d) or 2(a) above.

3. 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.

Note: Employees who do not provide health care services as described above cannot be exempted from paid FFCRA leave as health care providers even if their services effect health care services (for example, IT professionals, building maintenance, human resources, cooks, food services workers, records managers, consultants, and billers).

Further clarifications as to what constitutes diagnostic, preventive, and treatment services follow:

• “Diagnostic services” include 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” 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.

29 CFR 826.90 is revised to state that notice of the need for expanded FMLA leave is required as soon as practicable. If foreseeable, the notice generally would be expected before leave commences. This is a change in the DOL’s position, which previously stated that employers could require notice after the first workday of such leave.

29 CFR 826.100 is revised to clarify that required documentation of the need for paid leave under FFCRA must be provided as soon as practicable. This is a change in the DOL’s position, which previously stated that employers could require documentation in advance of the leave.

The employment attorneys of Wooden McLaughlin LLP can assist with these and all of your employment law needs. Call us at 888-639-6151 or visit our offices in Indianapolis, Evansville, or Bloomington to schedule a consultation.

(This post summarizes complex legal issues and is not legal advice. Consider consulting with a lawyer about specific situations.)