The DOL released new regulations revising the temporary rule implementing the Families First Coronavirus Response Act (“FFCRA”). The new regulations are effective September 16, 2020, through December 31, 2020, and are in response to a decision from the U.S. District Court for the Southern District of New York on August 3, 2020 that found parts of the FFCRA invalid. The most significant change is the revision to one of the definitions of “health care provider.”
The FFCRA permits employers to designate certain employees as health care providers exempted from the FFCRA leave entitlements. Previously, health care providers for purposes of the exemption were broadly defined as anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This included any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. The prior definition also included:
- any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility;
- anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and
- any individual who the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
The new rule narrows the definition of who qualifies for the health care provider exemption to the FFCRA leave entitlement by focusing on the duties or role of the employee, and excludes certain employees of health care facilities whose job functions are not related to providing health care. The regulations now define health care providers who may be exempted from FFCRA leave as employees who meet the FMLA definition of health care provider (see below), and other employees 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.
To be more specific, the revised rule lists three types of employees who may qualify as “health care providers”: (1) nurses, nurse assistants, medical technicians, and any others who directly provide diagnostic, preventative, treatment services, or other services that are integrated with and necessary to the provision of patient care; (2) employees who are considered health care providers under the usual FMLA definition; and (3) employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care. Under the revised definition, specific examples of services that are considered to be diagnostic, preventative, and treatment are listed.
(1) The [FMLA] defines health care provider as:
(i) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
(ii) Any other person determined by the Secretary to be capable of providing health care services.
(2) Others “capable of providing health care services” include only:
(i) 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;
(ii) 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;
(iii) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement.
(iv) Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
(v) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
29 CFR 825.102.
The new temporary rule also revises the notice and documentation requirements to clarify that documentation supporting the need for leave should be provided to the employer as soon as practicable when the need to take leave becomes foreseeable. The previous version stated that documentation must be given “prior to” taking leave.
The revised temporary rule also reaffirmed:
- An employee can only take FFCRA leave if the employee would have had work to do if they were not on FFCRA leave. FFCRA leave is not available if the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason.
- Employees can only take intermittent FFCRA for certain qualifying reasons and the employer has to agree that they can use the leave intermittently.
In light of these changes, employers should review their COVID-19 leave policies and consult with counsel about the applicability of the health care employee exemption.
 The NY court decision found the following portions of the rule invalid:
- (1) the requirement under § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave;
- (2) the requirement under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval;
- (3) the definition of an employee who is a “health care provider,” set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and
- (4) the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).
 The prior regulations had one definition of health care provider that applied to individuals who were qualified to order quarantine and another definition for those who could be exempted from the FFCRA leave provisions.