The Department of Labor (DOL) announced that it has updated its rules regarding the Families First Coronavirus Response Act (FFCRA). The new rules go into effect on September 16, 2020.
The update occurred in response to an August 2020 decision by a federal district court which struck down the DOL’s rules surrounding:
- The healthcare exemption.
- Intermittent leave.
- FFCRA pay when the office is closed or no work is available.
- Leave documentation.
As a result, we recommended being very cautious about relying on DOL rules related to these topics until the DOL updated them or appealed the court’s decision. Well, the wait is officially over!
The DOL made adjustments to how it will administer and enforce FFCRA but did not adopt everything from the federal court ruling. We will explain the updates on each of these topics below, and will continue to provide updates should further legal action be taken regarding these topics.
If you are a CEDR Member, you can find a discussion on these updates and ask any questions you might have about them in the CEDR Member Forum.
Not a CEDR Member? Join the conversation in our private, professional Facebook Group, HR Base Camp.
The Healthcare Exemption
We can summarize the new definition of “healthcare provider” as being a clinical care employee. But the rule is, of course, more technical than merely covering “clinical employees,” and you should review our full explanation below any time you receive a FFCRA request.
This rule change is mostly good news. The exemption is now much more narrow than it was, but not as narrow as the federal court suggested it should be. This does mean that we could continue to see a fight about the wording, but at least for now, the DOL has clarified what employers should do.
Why the Exemption Has Been in Question
When Congress enacted the FFCRA, it allowed the DOL to make an exemption for healthcare providers. In doing so, the DOL went far beyond exempting healthcare providers and instead exempted anyone who worked for a healthcare employer.
It was not surprising that a federal court took issue with this and said that the DOL exceeded its authority by broadening the exemption beyond what was intended.
The court suggested that the DOL use the definition of “healthcare provider” from the FMLA, which is limited to high-level independent providers. Fortunately, the DOL is still using a broader definition than that.
The DOL wants the exemption to be able to cover:
“…[those] whose absence from work would be particularly disruptive because those employees’ services are important to combating the COVID-19 public health emergency and are essential to the continuity of operations of our health care system in general.”
Those essential workers don’t just include doctors, but also critical care providers like nurses.
The DOL’s Updated Healthcare Exemption
Under the updated FFCRA rules, employees who are “healthcare providers,” and therefore can be made exempt from the paid leave requirements, include the following individuals:
- High-level providers: doctors of medicine or osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, and physician assistants.
- These are providers who are permitted under the FMLA to provide a medical certification for a patient.
- Other employees who provide diagnostic services, preventive services, and/or treatment services.
- For example, a nurse, medical technician, or hygienist.
- Employees who work under the supervision, order, or direction of, or providing direct assistance to a direct care provider to provide diagnostic services, preventive services, and/or treatment services.
- For example, a medical/dental/chiropractic assistant.
- Employees who provide other services that are integrated with, and necessary to, the provision of patient care and, if not provided, would adversely impact patient care.
- For example, laboratory and x-ray technicians whose work is necessary for diagnosis and treatment. Other examples are employees who may not be clinical providers, but whose work is necessary for patient care: bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.
An employee does not need to have a medical license or registration to be covered by the above definition. The rule doesn’t look at licensure, but rather at whether the employee is capable of and employed for providing health care services.
Each time an employee requests time off, you should be making an individualized determination on whether they meet the exemption and whether you are choosing to use it. Particularly because the DOL isn’t directly adopting the federal court’s interpretation here, and this exemption could still be called into question, we highly recommend that you document your decision making.
CEDR Members: Use the “Add a Note” function in your HR Vault to add confidential documentation to an employee’s file.
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Your Admin Team Is Not Exempt
You cannot exempt your managers or administrative staff from the FFCRA requirements, as those individuals will not qualify as “healthcare providers.”
This is a much more limited version than the original DOL rule, which allowed the exemption to be used by any medical facility employee. Now, the DOL has said, “It is not enough that an employee works for an entity that provides health care services.”
You cannot exclude someone who doesn’t meet the “healthcare provider” parameters above, “even if their services could affect the provision of health care services.”
Small Business Exemption
It is unlikely that you could exempt a member of the admin team using the Small Business Exemption. To do so, you would basically have to show that your business would not survive either having to pay this person their leave or without having them in the office.
With so many administrative functions being outsourced, being done from home, covered by temps, or being completed with a delay (processing insurance claims late is not ideal but happens often), this is a hard argument to make. So, your argument would need to be a financial one — that you cannot afford to pay the employee for their leave and then wait for the IRS tax credit (which often shows up within just a few days).
Also, keep in mind that trying to claim an exemption and denying paid FFCRA leave doesn’t fix the employee’s inability to work.
Update Your Policies if Necessary
CEDR has consistently advised our members not to distribute a written FFCRA policy to employees. This is because we expected the rules to change, and they very likely will continue to change.
We also advised against having a blanket policy of opting out of FFCRA using an exemption. Instead, an individualized assessment should occur each time an employee expresses a need for leave, using the rules in place at the time of the request.
It has come to our attention over the past months that many employers have distributed written policies and/or statements saying FFCRA does not apply to them. Often this has been done on the advice of a third party advisor.
If you have done anything like this, now would be the time to amend your policies and to rescind any blanket opt-outs so you are not violating the current rules regarding how the healthcare exemption can be used.
Intermittent Leave
In general, intermittent leave means taking leave in daily or hourly increments instead of for an extended block of time, e.g., ten full weeks. Employees seeking a reduced work schedule due to child care needs are basically asking for intermittent leave.
The intermittent leave rules came under fire because of a dispute over whether employers should be able to have the option of denying the use of intermittent leave. The debate on this between the court and the DOL is confusing, so we’ll just cut to the chase and tell you what you can and cannot do based on what we know at this time.
Intermittent Leave for Reasons Directly Related to COVID-19
If someone is using FFCRA leave for one of the following reasons, you do NOT have to allow intermittent leave:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Advised by a healthcare provider to self-quarantine due to COVID-19 concerns;
- Experiencing COVID-19 symptoms and seeking medical diagnosis; or
- Caring for an individual subject to a federal, state, or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.
Allowing someone to come into the office, under those circumstances, would risk the spread of COVID-19. For obvious reasons, an employee who has COVID or is caring for someone with COVID should not come into the office to work periodically during their leave.
This is the case even if the employee is requesting to put in those hours from home.
FFCRA does not require employers to permit employees to work from home, as an employer may have several reasons for not wanting to or being able to permit that type of arrangement. Since employees need the approval to work from home to begin with, employers are not required to allow employees to take FFCRA leave intermittently while teleworking.
Intermittent Leave for Child Care
Here is where it gets a bit more complicated. The DOL now has an elaborate definition of “intermittent leave” when it comes to child care. Admittedly, it is quite confusing, so here’s the best “rule of thumb” we can give to sum it up:
If the school is completely closed due to COVID, employers get to decide whether they want to grant an intermittent leave request, even if the employee is working remotely.
If the school is on a hybrid system (e.g., alternate day, half-day, every other week) due to COVID, employers must grant FFCRA leave on days and times the employee cannot work because they need to care for their child, even if the employee is working remotely.
Schools and Day Cares that Are Fully Closed or Fully Remote
If the child’s place of care is closed or going remote indefinitely or for an extended period, the parent employee may need to take that entire time off as FFCRA leave.
However, some parents can arrange for someone else to be with their child and want to work some type of reduced schedule, e.g., every other week off, or working only certain days of the week.
If this is the case, the employee is requesting to take intermittent leave, which requires the employer’s agreement to grant that request. In this scenario, it is at the employer’s discretion whether to permit the employee to work a modified schedule.
Hybrid School Schedules
If the child’s place of care is on some type of hybrid in-person schedule (open some days/hours and closed others), then the DOL does not consider that to be a single FFCRA request. Instead, each time the school opens or closes is a new qualifying reason to take FFCRA leave.
An employee who can only work a half-day or a few days during the week due to their child’s hybrid school schedule is not requesting intermittent leave. They are making individual FFCRA leave requests for each time they need to be absent from work.
Since it is not intermittent leave, the employer has to grant that FFCRA leave, i.e., no employer consent is required for this irregular use of leave time.
FFCRA Pay When the Office Is Closed or No Work Is Available
The law provides FFCRA pay where the employee is unable to work due to specific COVID-19 related reasons.
The DOL rules made clear that FFCRA pay is not owed when the employer did not have work available to the employee anyway. This could be due to a temporary shut down or a need to reduce staffing coverage due to business changes.
The court disagreed with this, insisting that FFCRA pay eligibility rest solely on whether the employee falls into any of the qualifying FFCRA conditions, not on whether the business is open or the employer has work available for the employee.
The DOL’s Updated Guidance
The DOL is sticking with their original interpretation, making clear that “employees may take FFCRA leave only if work would otherwise be available to them.”
So, if in the unfortunate circumstance you need to close your business again and furlough or lay off your employees, they would likely be eligible for unemployment benefits, but not FFCRA pay.
CAUTION: Employers should not simply “lay off” employees who qualify for FFCRA pay rather than provide them with the benefit.
The DOL directly addressed this situation:
“To be clear, the Department’s interpretation does not permit an employer to avoid granting FFCRA leave by purporting to lack work for an employee. The work-availability requirement for FFCRA leave should be understood in the context of the applicable anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking such leave.”
In other words, employers who try to avoid providing (fully reimbursable) FFCRA pay by laying off employees could easily find themselves defending a retaliation claim.
Leave Documentation
The DOL was permitting employers to ask that employees make their requests for FFCRA leave in advance, where possible. The court took issue with this, saying that the law permits the employees to use FFCRA as emergency leave, so no advance notice should be required.
In a change of pace, the DOL decided to amend its existing rules to clarify that any documentation required under their rules “need not be given ‘prior to’ taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable…“
Simply put, you can request documentation of the need for leave but cannot require that it be submitted in advance.
CEDR is actively monitoring for any updates and will let our members know when we learn of any changes.
If you are a CEDR Member, you can find a discussion on these updates and ask any questions you might have about them in the CEDR Member Forum.
Not a CEDR Member? Join the conversation in our private, professional Facebook Group, HR Base Camp.
Updated September 17, 2020; originally published September 16, 2020
