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.