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U.S. Department of Labor Issues New FFCRA Rules That Significantly Affect Healthcare Providers

November 24, 2020

By Jerry L. “Jay” Stovall, Jr. Partner, Breazeale, Sachse & Wilson, LLP.


U.S. Department of Labor Issues New FFCRA Rules That Significantly Affect Healthcare Providers
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The United States Department of Labor issued revised Families First Coronavirus Response Act (FFCRA) Rules that went into effect on September 16, 2020. Details of the changes are in the full article below:

  • Revise the definition of “healthcare worker.” The new regulations greatly narrow the scope of employees who may be exempted from coverage of the FFCRA as healthcare providers. 
  • Reaffirm Work Availability. If no work is available, whatever the reason, the employee does not qualify for leave.
  • Confirm Employer Consent for Intermittent Leave. Intermittent leave can only be taken with an employer’s consent. 
  • Intermittent Leave for School/Child Care. The revised regulations clarify that FFCRA leave to care for employee’s child whose school, place of care, or childcare provider is unavailable due to COVID-19 and the meaning of “intermittent” leave.
  • Timing of Employee Notice of Need for Leave and Supporting Documentation: Clarifies when an employee must provide notice of the need for leave and the timeline for the employee’s submission of supporting documentation.

As you may know, FFCRA provides an exception to coverage by the FFCRA for employees who meet the definition of a “healthcare provider.” The original Rules defined “healthcare provider” in such a way that almost anyone employed by a medical practice could meet the definition and be exempted from the protections of the FFCRA by their employer. Many medical practices made use of this exception to ensure that they maintained adequate staff. However, many questioned the seemingly overbroad nature of the definition. 

In August 2020, the United States District Court for the Southern District of New York issued a ruling in the case of State of New York v. U.S. Department of Labor, invalidating certain provisions of the FFCRA, and especially the definition of healthcare provider used to define who could be excluded from the protections of the Act. 

In response to this ruling, on September 11, 2020, the United States Department of Labor issued revised Rules that went into effect on September 16, 2020. The new regulations focus on what an employee does rather than who they are employed by in defining a healthcare provider. This greatly narrows the scope of employees who may be exempted from coverage of the FFCRA. The new rules generally define a healthcare provider as:

  • Any employee who is a healthcare provider under 29 CFR 825.102 and 825.125; or 
  • Any employee who is capable of providing healthcare services. 

“Providing healthcare services” will generally mean that the employee provides diagnostic services, preventive services, treatment services, or other services that are “integrated with and necessary to the provision of patient care” and which, if not provided, would adversely impact patient care. These types of services will usually include but are not necessarily limited to:

  • Nurses, nurse assistants, medical technicians and any other persons who directly provide services as described above;
  • Employees under the supervision, order or direction of, or providing direct assistance to a healthcare provider as described above; and
  • Employees who are otherwise integrated into and necessary to the provision of healthcare services such as laboratory technicians who process test results necessary to diagnoses and treatment.

The revisions further explain that: 

  • “Preventive services” include screenings, checkups and counseling to prevent illnesses, disease, or other health problems; and
  • “Diagnostic services” will usually 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.
  • 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.
  • “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.

The revisions also offer guidance as to the types of positions that will usually not qualify as a healthcare provider, even if their services could affect the provision of healthcare services. These include IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants and billers.

Additional Revisions:

In addition to addressing the definition of “healthcare provider” the new rules also address several other aspects of the NY ruling. Specifically, the new rules address: 

Reaffirm Work Availability: FFCRA can only be taken by an employee who has work available to perform from which she can take leave. If no work is available, whatever the reason, the employee does not qualify for leave.

Confirm Employer Consent for Intermittent Leave: Intermittent leave can only be taken with an employer’s consent. Intermittent leave is defined as “leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period of leave taken for a single qualifying reason.”

Intermittent Leave for School/Child Care: Clarifies FFCRA leave to care for an employee’s child whose school, place of care, or childcare provider is unavailable due to COVID-19 and the meaning of “intermittent” leave.

  • Leave is not intermittent and employer consent is not required if: School is closed for full days on Monday, Wednesday, and Friday, but the child is in school for full days on Tuesday and Thursday, the employee seeking full-day FFCRA leave for the closed days is not using intermittent FFCRA leave because the “school literally closes … and opens repeatedly.” As such, each separate school closure constitutes an independent reason for FFCRA leave. Accordingly, no employer approval is required in such circumstances (it is not considered intermittent).
  • Leave is intermittent and employer consent is required if: a child’s school or place of care involves a different “hybrid” school arrangement, such that the school operates on partial-day increments, or less than full days (i.e., half-day remote, half-day in-person, etc.)

Timing of Employee Notice of Need for Leave and Supporting Documentation: Clarifies when an employee must provide notice of the need for leave and the timeline for the employee’s submission of supporting documentation.

  • Notice of the employee's need for leave must be given to the employer “as soon as practicable” when the reason for leave is foreseeable. (Formerly, an employee was required to provide notice prior to taking leave.)
  • Documentation supporting the employee's need for leave must be provided to the employer “as soon as practicable,” which the DOL notes will “in most cases be when the employee provides notice.”


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