COVID-19 Employer Playbook

Federal Judge Strikes Down Key Limitations on FFCRA Paid Leave Overview In response to the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA) which created emergency paid sick leave (ePSL) and emergency FMLA (eFMLA) leave for those suffering from COVID-19 or its effects. Shortly after the passage of FFCRA, the Department of Labor (DOL) finalized temporary regulations interpreting and implementing the FFCRA’s provisions. On Monday, a federal district court judge provided a ruling that invalidated four significant aspects of the regulations: 1. The DOL’s definition of “healthcare provider” 2. The DOL’s “work availability” requirement 3. The requirement of employer consent to intermittent leave 4. The requirement that employees provide notice of leave prior to taking the leave What Does This Mean? The result of this ruling will be that that more employees are eligible for up to 12 weeks of COVID-19-related ePSL and eFMLA. As such, employers should consider whether they need to adjust their leave determinations in light of the court’s decision. This is particularly relevant for any employers who are healthcare providers or who have denied COVID-19 leaves. A Little History on the FFCRA and the DOL Regulations Anticipating the stress COVID-19 would put on our nation’s healthcare system, Congress made certain types of employees, specifically healthcare providers and emergency responders, ineligible for FFCRA paid leave. If an employee falls into either category, the employer may decline to authorize requested leave. The FFCRA generally defines a healthcare provider as: • A doctor of medicine or osteopathy who is authorized to practice medicine; or • Any other person determined by the Secretary of Labor to be capable of providing healthcare services. Dramatic Expansion The DOL dramatically expanded the definition of healthcare provider under the regulations such that, a “health care provider” includes: • Anyone employed at a “doctor’s office, hospital, health care center, clinic, post- secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or other similar institution, employer, or entity.” As an example, a professor or cafeteria worker at a medical school would all be considered health care providers under the DOL definition. • Anyone employed by an entity that contracts with one of the aforementioned institutions to provide services that support or maintain the institution’s operation.


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