In the revised Temporary Rule implementing the Families First Coronavirus Response Act (“FFCRA”) released by the Department of Labor last September 11, 2020 and was effective since September 16, 2020, the DOL addressed the issues with the Temporary Rule.

They have reaffirmed the requirements for the FFCRA leave may only be taken if the employer has work available to the employee. And if applicable, the employee must obtain permission from their employer in order to take intermittent FFCRA leave.

One of the highlights in the revision is their revision of the definition of “health care provider.” They stated that employers may exclude from FFCRA eligibility those employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

The DOL has also revised the notice and documentation requirements to clarify that employees must provide notice of their need for leave as soon as practicable, but not in advance.

Here are some of the main points of comparison between the Original Temporary Rule and the Revised Temporary Rule:

The Work-Availability Requirement

The Original Temporary Rule provided that FFCRA leave was not available to an employee whose employer did not have work available at the time of the leave, since the language of the FFCRA grants paid leave only to employees who are “unable to work (or telework) due to a need for leave because” of one of six qualifying reasons related to COVID-19.

The Revised Temporary Rule makes clear that an employee is not eligible for paid leave for any of the qualifying reasons, unless the employer would otherwise have work for the employee to perform. The DOL also provided a more robust explanation of its interpretation that the FFCRA requires that the qualifying reason is the but for cause of the inability to work, which should ensure that the work availability requirement survives future judicial scrutiny.

Intermittent Leave

The Original Temporary Rule, (i) prohibited intermittent leave for on-site workers due to COVID-19 related illness, isolation or quarantine, and (ii) permitted intermittent leave for other qualifying reasons (such as COVID-19 related childcare) and for employees who can work remotely, but only if the employer agreed to permit the intermittent leave arrangement.

The Revised Temporary Rule reaffirms the DOL’s position that employer approval is needed to take any intermittent FFCRA leave, and further explains the basis for the approval requirement.

Revised Definition of “Health Care Provider”

The FFCRA allows employers to exclude from FFCRA paid leave eligibility those employees who are “health care providers” or “emergency responders.” In concluding that the prior definition of “health care provider” was overly broad, the District Court found that for the purposes of defining a “health care provider” who could permissibly be excluded from FFCRA eligibility, the definition must depend on the “skills, role, duties, or capabilities” of the employee, not merely the identity of the employer.

The Revised Temporary Rule contains a list of three types of employees who may qualify as “health care providers.” First, it includes nurses, nurse assistants, medical technicians, and any other persons who directly provide diagnostic, preventive, treatment services, or other services that are integrated with and necessary to the provision of patient care. It also includes those employees providing those services under the supervision, order, or direction of or providing direct assistance to individuals providing those services. Third, it includes those employees who, although they do not directly interact with patients, their services are integrated into and necessary to providing health care services – such as lab technicians who process test results necessary for diagnoses and treatments.

Revising the Notice and Documentation Provision

The Revised Temporary Rule also revised the notice requirements to clarify that notice of the FFCRA’s Paid Sick Leave may not be required in advance. Rather, it may only be required after the first workday or portion of a workday for which the employee takes Paid Sick Leave. After that time, employers may require notice as soon as practicable.

Nonetheless, all raised questions regarding the Original Temporary Rule were addressed through the revision. It clarifies that employers need not provide FFCRA leave when no work is available to the employee for reasons unrelated to their need for FFCRA leave. It reaffirms that employer consent is required before employees take FFCRA leave intermittently in applicable scenarios. It simplifies the definition of “health care provider” employees who may be excluded from FFCRA coverage. Finally, it reaffirms that notice of the need for FFCRA leave, and documentation to substantiate the leave, must be provided as soon as practicable (but not necessarily in advance of the leave, unless practicable to do so).