On Wednesday, September 16, 2020, the U.S. Department of Labor published new revisions to its Families First Coronavirus Response Act (FFCRA) regulations following a recent federal court decision that invalidated several regulatory provisions interpreting the FFCRA.  In connection with the new guidance, the DOL also updated its FFCRA Q&As.  Importantly, the updated regulations limit the scope of the “health care provider” exemption to the FFCRA paid leave entitlements.

“Health Care Provider” Definition is Dramatically Limited by New Guidance

The FFCRA provides up to twelve weeks of COVID-related leave benefits to employees of employers with fewer than 500 employees, but allows employers to treat health care providers as exempt from those benefits.  As explained in our previous blog post, the US DOL initially issued guidance indicating nearly any employee employed by a medical provider or an entity that contracts with a medical provider could be treated as exempt from the FFCRA paid leave benefits.  The new regulations dramatically narrow the scope of the “health care provider” definition for the exemption.

Under the new guidance, only employees who provide services “integrated with and necessary to the provision of patient care” may be treated as exempt health care providers for FFCRA paid leave purposes.  The guidance expressly states that a health care employer may not treat its IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, and billers as exempt health care providers, because they “provide services that affect, but are not integrated into, the provision of patient care.”

Health care employers may continue to treat as exempt medical doctors, nurse practitioners, and other licensed healthcare professionals, as well as employees providing services under the direction of or supervision of such professionals.

In addition, the revised regulations, which take effect immediately, do the following:

• Reaffirm that FFCRA leave may only be taken if the employer has work available from which an employee can take leave;
• Confirms that intermittent leave under the FFCRA may only be taken with employer approval; and
• Clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation.

These regulatory changes have immediate impact on health care employers, particularly those employers who have treated some or all employees as exempt from the FFCRA paid leave benefits in reliance on DOL’s initial guidance.  Any employers with questions about these changes are encouraged to consult with counsel, including Sara Campbell (scampbell@mpba.com) or Tamara Roe (troe@mpba.com).