Date: Oct 6, 2020

The United States Department of Labor (“DOL”) recently issued revisions to its Families First Coronavirus Response Act (“FFCRA” or the “Act”) paid leave rules in response to a recent New York federal court decision, which had struck down certain provisions of the original Act that was first issued in April. The FFCRA provides eligible employees up to two weeks of paid leave, subject to certain caps, for certain coronavirus-related absences, and up to an additional 10 weeks of paid leave to care for children who are at home due to school or day care closures.  The DOL revisions, which went into effect on September 16, 2020, are certain to impact health care facilities around the nation, including in North Dakota. The new changes, along with the remainder of the FFCRA will remain in effect until December 31, 2020, unless otherwise expanded by the DOL.

The most significant change is the DOL’s restructuring of the definition of “healthcare provider.” Notably, while the original definition broadly exempted any employees working at a health care facility, even those not responsible for direct patient care, the new definition is much narrower. Instead, it focuses on the specific job duties, not the nature of the employer. As a consequence, health care employers can no longer broadly claim an exemption from the FFCRA for all employees at their facility. Below, we have assembled a list of Frequently Asked Questions that will assist in determining which employees continue to be exempt from the requirements of the FFCRA and which ones are now likely entitled to benefits.

1. Which employees remain exempt under the new definition of health care provider?

Employers may still consider health care providers working at a health facility exempt under the FFCRA if the employees fall into two distinct categories:

A.  Anyone who is a licensed Doctor of Medicine, nurse practitioner, or other health care provider who are authorized to sign FMLA certifications; and

B.   Any other person who 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 group may include, but is not limited to, nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition, or an aide who helps bathe, dress, and a feed a patient incapable of such care—all fit under the definition of health care providers.

2. Which employees are no longer exempt from the FFCRA?

Any person working at a health care facility who does not provide direct health care services but otherwise works for the facility to help run the operation. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are all examples of employees who are not health care providers, and, would, therefore, not be entitled to benefits under the FFCRA.

3. Who is an emergency responder?

An emergency responder is defined as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.  This includes, but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to act practically when using this definition to exempt emergency responders from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.

4. Where there any other changes or revisions to the FFCRA?

Yes. In addition to the narrowed definition of “health care providers,” the DOL issued the following changes:

A.  Notice.  Employees seeking to take leave under FFCRA should provide their employer with notice, either orally or in writing, and documentation as soon as practicable. Notice should include the employee’s name, dates for the requested leave, reason for leave and a statement that they are unable to work. Where leave is requested due to the closure of a school or child care facility, the employee must also include the name of their child, the school or place of care that has become unavailable, and a statement that no other suitable person is available to care for their child. Advance notice is still required where the needed leave is foreseeable, such as a scheduled closure of the school or childcare facility. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

B.   Benefits during Furlough or Layoff. FFCRA leave is only available when the employer has work available for the eligible employee. Employees who are furloughed or laid off do not qualify for FFCRA leave but may qualify for their state’s unemployment programs. There are certain exceptions for employees who receive FFCRA paid sick leave prior to a furlough, all of which can be accessed on the FFCRA FAQ website.

C.  Intermittent Leave if Teleworking. Intermittent leave is permitted under the FFCRA for eligible employees who are teleworking. If an employee becomes unable to telework during their normal scheduled hours due to one of the qualifying FFCRA reason, they should make arrangements to take paid sick leave intermittently while teleworking. Intermittent leave may be taken in any increment, provided that the employee and employer have made agreed to a set schedule.

D.  Intermittent Leave, if not Teleworking.   Intermittent leave is not available to eligible employees who are not approved to telework. Once these employees begin taking paid sick leave, they must continue to take paid sick leave each day until either (1) they use the full amount of paid sick leave or (2) they no longer have a qualifying reason for taking paid sick leave. If the employee no longer has a qualifying reason for taking paid sick leave before they exhaust their paid sick leave, they may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.