On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (DOL) announced changes to its rules concerning the Families First Coronavirus Response Act (FFCRA), the law that provides paid sick leave and expands family and medical leave for individuals impacted by COVID-19. The DOL changes came in response to a decision of the United States District Court for the Southern District of New York invalidating portions of the original DOL regulations. See here for a prior update on the amicus brief filed by LR in the case challenging the regulations on behalf of the Service Employees International Union.

The updated rules expand the number of workers who may qualify for leave under the FFCRA, specifically expanding eligibility for healthcare workers.  The original rule allowed healthcare employers to exclude their employees from taking leave covered by the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). However, the district court struck down the DOL’s broad definition of “healthcare providers,” noting that the definition of “healthcare provider” needed to be “at least a minimally role-specific determination” of who is capable of providing healthcare services, depending upon the “skills, roles, duties, or capabilities” of the employees. 

In response, the DOL added new language about which employees of healthcare providers could be excluded from leave benefits, focusing on those whose work is related or integral to the provision of healthcare services, rather than employees in hospital departments such as IT or accounting, whose services are not directly related to healthcare. The updated regulations identify the following types of employees, in addition to doctors, who may be excluded from taking FFCRA leave: 

  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 healthcare provider; and
  3. employees who are “otherwise integrated into and necessary to the provision of healthcare services,” such as laboratory technicians involved with diagnoses and treatment of patients.

The new regulations clarify that workers must seek employer consent before taking FFCRA paid leave. They also clarify that employees may only take FFCRA paid leave for days that their employer had work available and not on days when an employee would already be off from work.

The updated regulations have an immediate impact on employees and employers. In particular, healthcare employers who previously exempted some or all of their employees from FFCRA leave may now be required to approve a greater number of their workers for paid leave.