DOL Narrows “Health Care Provider” Definition in Revised FFCRA Rule

Effective September 16, 2020, the DOL promulgated a revised rule regarding certain provisions of the FFCRA. The DOL reviewed objections by the U.S. District Court for the Southern District of New York from early August.

Who’s this Affect? Health care employers who may have excluded their entire workforce as “health care providers” from the original FFCRA rules must now review employees’ requests “anew.” Remaining applicable employers may want to review leave qualifications with staff and employees to ensure fair applicable of rules.

In summary, the revised FFCRA rule:

1. REAFFIRMS that paid sick leave (PSL) and expanded family and medical leave (EFMLA)
   may be taken only if the employee has work from which to take leave and clarifies that this
   requirement applies to all qualifying reasons to take PSL and EFMLA
2. REAFFIRMS, where applicable in the FFCRA, an employee must obtain the employer’s approval to take intermittent PSL or EFMLA
3. REVISES the definition of “health care provider,” narrowing it to mean: health care providers under FMLA regulations, and those “employed to provide” diagnostic, preventive, or treatment services, or other services…integrated with and necessary to the provision of patient care.
4. REVISES Section 826.100 to state an employee must provide employer notice of a request for leave as soon as practicable. The DOL adds: if the leave IS foreseeable, a notice is to still be provided ASAP, but expect such notice provided before the start of leave.
5. REVISES Section 826.90 to correct an inconsistency regarding when an employee may need to provide notice of EFMLA to an employer. The DOL clarified, regarding intermittent leave, an employee’s need for such leave must be balanced against the employer’s need to minimize disruptions to its operations. For example,”intermittent” leave notice is not required to an employer for an employee whose child is on an alternative-day school schedule.