September 15, 2020
Employment Law Alert
Employment Law Alert
The Family First Coronavirus Response Act, while providing covered employees with helpful paid leave benefits, has left employers with many questions. The Department of Labor, has issued new revisions and clarifications to its temporary rules concerning who is considered a health care provider and what constitutes intermittent leave for childcare purposes. This alert explains these changes and helps employers navigate potential changes to their policies and procedures.
On Friday, September 11, 2020, the Department of Labor (DOL) issued revisions and clarifications to its temporary rules implementing the Family First Coronavirus Response Act (FFCRA), largely in response to an August 3, 2020 ruling from the United States District Court for the Southern District of New York. The most significant revisions are (i) a significant change and narrowing to the definition of “health care providers” that can be excluded from the application of the FFCRA; and (ii) a clarification with respect to intermittent leave for childcare purposes. These changes are described in detail below, and result in employers who previously did not have to worry about FFCRA coverage suddenly having certain employees eligible for FFCRA leave, and all covered employers having to review and potentially revise their intermittent FFCRA policies and procedures. The revised rules are scheduled to take effect on September 16, 2020.
The FFCRA permits employers with less than 500 employees to exclude certain health care providers from taking FFCRA leave. Under the previous rules, the definition of health care provider was broad enough to include all employees of a health care employer’s workforce (e.g., billers, IT technicians, human resource personnel, etc.). In essence, the definition was based on the employer. If the employer was a health care provider, all of its employees were “health care providers” under FFCRA and, thus, excluded from coverage. The revised rules change this and provides a narrower definition. Under the new rules, each employee’s job duties must be examined on a case-by-case basis to determine if the employee is a “health care provider” and, thus, excluded from the FFCRA. As further detailed below, under the revised rules, employees of a health care employer who do not provide direct services to patients and are integrated into and necessary to the provision of health care services are not “health care providers” and, therefore, cannot be excluded from taking FFCRA leave.
Under this new, revised definition of health care provider, the following employees remain covered “health care providers” and thus excluded from the FFCRA:
The DOL outlined the typical work locations of health care providers and specified that they include a: doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided.
This revised definition of health care provider excludes those employees who do not provide 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 services workers, records managers, consultants, and billers, etc. This means that employers with fewer than 500 employees that provide health care services now must evaluate each employee, on a case-by-case basis, to determine if the employee falls under the definition of “health care provider.” If the employee does not, the employee now has FFCRA leave rights.
Per prior and continued DOL rules, employees are entitled to use FFCRA leave on an intermittent basis for eligible childcare leave with employer approval. But, the DOL has now “clarified” that the employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or hybrid-attendance) basis. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). The DOL reasoned that “[u]nder the FFCRA, intermittent leave is not needed because the school literally closes and opens repeatedly.”
The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person. Prior employer approval would not be needed in these circumstances either. Under the revised temporary rule, the employee is entitled to FFCRA (without needing the employer’s permission) for the portion of the day in which the child is attending school remotely. This is distinguished from the scenario in which school is closed for an extended period of time and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s instruction schedule, at which point employer approval will be needed. Given this new guidance, employers should work with employees to understand and document the employee’s child’s alternate or hybrid school model and work with the employee to schedule FFCRA leave if needed. In doing so, employers should be cognizant of the fact that the employee has rights to FFCRA in connection with the child’s alternate/hybrid school model.
For our prior other articles explaining the FFCRA please see:
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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