FFCRA Revised!

September 15, 2020

DOL has released their revised temporary (through 31 December) rule in response to the ruling of the District Court.  The new interpretation will become effective on 16 September and we will share additional detail tomorrow at the VNPP Fall Conference (Register now, if you have not done so!).  

We have excerpted parts of two sections which seem most relevant below, and the full DOL release is available here.

III. Reaffirming and Explaining the Employer-Approval Requirement for
Intermittent Leave under § 826.50 in Accordance with FMLA Principles
The Department reaffirms the April 1 temporary rule’s position that employer approval is
needed to take intermittent FFCRA leave, and explains the basis for this requirement, which is
consistent with longstanding FMLA principles governing intermittent leave. Intermittent leave is
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.15

15 Intermittent leave occurs only when the employee has periods of leave interrupted with periods
of reporting to work (or telework). In contrast, an employee who works a schedule that itself
could be characterized as “intermittent” or sporadic in which he or she has, for example, several
days off in between each shift, is not taking intermittent leave where the periods between the
shifts for which leave is used are periods during which the employee is not scheduled to work.

IV. Revisions to Definition of “Health Care Provider” under § 826.30(c)(1) to Focus

on the Employee
After careful consideration of the District Court’s order, this rule adopts a revised
definition of “health care provider,” to appear at § 826.30(c)(1), for purposes of the employer’s
optional exclusion of employees who are health care providers from FFCRA leave. First, revised
826.30(c)(1)(i) defines a “health care provider” to include employees who fall within the
definition of health care provider under 29 CFR 825.102 and 825.125. Specifically, revised
826.30(c)(1)(i)(A) cites 29 CFR 825.102 and 825.125—to bring physicians and others who
make medical diagnoses within this term. Second, revised § 826.30(c)(1)(i)(B), consistent with
the District Court’s order, identifies additional employees who are health care providers by
focusing on the role and duties of those employees rather than their employers. It expressly states
that an employee is a health care provider if he or she is “capable of providing health care
services.” The definition then further limits the universe of relevant “health care services” that
the employee must be capable of providing to qualify as a “health care provider”—i.e., the duties
or role of the employee. Specifically, a health care provider must be “employed to provide
diagnostic services, preventive services, treatment services, or other services that are integrated
with and necessary to the provision of patient care.”

The FFCRA’s optional exclusion from its leave entitlements has a different
purpose: ensuring that the health care system retains the capacity to respond to COVID-19 and
other critical health care needs. See 85 FR 19335. Congress’ optional exclusion of emergency
responders in addition to health care providers demonstrates that Congress was intending to
provide a safety valve to ensure that critical health and safety services would not be understaffed
during the pandemic. Given this context, the Department concluded Congress did not intend to
limit the optional health care provider exclusion to only physicians and others who make medical
diagnoses, i.e. the persons that qualify as a health care provider in the different contexts posed by
the FMLA and EPSLA. The Department thus interprets “health care services” for the purpose of
this definition to encompass relevant services even if not performed by individuals with a
license, registration, or certification. For the same reason, the Department has determined that an
employee is “capable” of providing health care services if he or she is employed to provide those
services. That is, the fact that the employee is paid to perform the services in question is, in this
context, conclusive of the employee’s capability. While a license, registration, or certification
may be a prerequisite for the provision of some health care services, the Department’s
interpretation of “health care services” encompasses some services for which license,
registration, or certification is not required at all or not universally required.