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USDOL Revises Regulations on COVID-19 Employee Leave

Late last week, the U.S. Department of Labor (USDOL) announced issuance of revised regulations reinterpreting key provisions of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The new regulations will take effect Sept. 16th when they are published in the Federal Register. Of greatest relevance to LeadingAge NY members is the new definition of “health care provider,” which will expand eligibility for EPSLA and EFMLEA leave to non-direct care employees.

The EPSLA and EFMLEA programs were created by the Families First Coronavirus Response Act (FFCRA) and require employers to offer sick leave and emergency family leave to employees who are unable to work because of the pandemic. By granting the employers a corresponding, offsetting tax credit, the federal government subsidizes these benefits, although the employers front the costs.

On Aug. 3, 2020, the U.S. District Court for the Southern District of New York issued a decision in State of New York v. U.S. Department of Labor invalidating four elements of USDOL’s original April 1, 2020 regulations implementing the FFCRA paid leave provisions: (1) the definition of “health care provider” for purposes of excluding employees from leave eligibility; (2) a requirement that employees have work available in order to be eligible for leave; (3) intermittent leave provisions; and (4) documentation requirements.

Employers can deny EFMLEA and FFCRA leave to employees who are “health care providers” or “emergency responders.” Under the previous regulations, USDOL broadly defined the term “health care provider” as anyone employed at any doctor’s office, hospital, health care center, clinic, health care educational institution, medical school, local health department or agency, retirement facility, nursing home, home health care agency, medical laboratory, pharmacy, or any similar entity. This also included any individual employed by an entity that contracts with any of these organizations to provide services or to maintain the operation of the organization. The Court ruled that this approach is invalid because it fails to focus on the role of the employee rather than on the identity of the employer. In response, the new regulation defines “health care provider” as any employee who is:

  • A health care provider under the existing Family and Medical Leave Act (FMLA) regulations (i.e., doctors, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and other practitioners);
  • Capable of providing diagnostic, preventative, or treatment services; and
  • Capable of providing other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

USDOL indicates that whether an employee qualifies under the new definition will be based on the employee’s duties. The regulations provide specific examples of the types of employees who qualify, including: (1) nurses, nurse assistants, medical technicians, and others directly providing diagnostic, preventive, treatment, or other integrated services; (2) employees providing such services under the supervision, order, or direction of, or providing direct assistance to a health care provider; and (3) employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians. Workers who do not actually provide health care services, even if their services could affect provision of health care, cannot be barred from taking EPSLA and EFMLEA leave. According to USDOL, this includes IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.

Other key elements of the new regulations are as follows:

  • Employees may take FFCRA leave only if work is otherwise available to them. According to USDOL, EPSLA and EFMLEA are intended to discourage potentially infected employees from reporting to work, and if the employer has no work for them, there is no need to discourage them from going to work.
  • USDOL has modified the definition of “intermittent leave” to account for participation of an employee’s child in hybrid learning (alternating schedules) but reiterated the requirement that employees must obtain their employer’s consent prior to taking EPSLA or EFMLEA leave on an intermittent basis.
  • Workers must provide documentation of their leave (i.e., their name, date(s) for which leave is requested, qualifying reason for the leave, and an oral or written statement that the employee is unable to work because of the qualified reason for leave) “as soon as practicable.” The regulation indicates that, in most cases, “as soon as practicable” will be when the employee provides notice of the need for leave.

The new regulations, which are effective prospectively, clarify issues raised in the State of New York v. U.S. Department of Labor decision by the District Court. However, it is unclear whether USDOL will appeal the decision or face challenges on its revised regulations. LeadingAge NY will provide further information as we receive it. In the meantime, member organizations should consult with their legal counsel on any revisions that may be needed to their leave policies as a result.

Contact: Dan Heim, dheim@leadingageny.org, 518-461-2934