On September 11, the DOL issued new rulings that change several points in the Sick Pay and FMLA extension benefits available under FFCRA – in some cases invalidating what the original law said. Four main issues were clarified or changed.

Work Availability

The DOL vacated the language in FFCRA instead ruling that an employee may be eligible for FFCRA Sick Pay and FMLA Extension pay ONLY if the employer has work available for them. Employees who are furloughed or not working due to business closure are NOT eligible to receive these benefits and instead directed to look to unemployment compensation options. The rule makes it clear that an employer may not manipulate any employee’s work schedule in an intentional attempt to affect their eligibility under FFCRA.

Intermittent Leave

After a court decision to strike down the prior DOL ruling that an employee’s request for intermittent use of the paid leave options under FFCRA required employer consent, the DOL reinstated this position. The DOL ruled that the employer may make the decision to allow or deny a request for intermittent leave based on how disruptive it would be to business operations. Specific to leave for care of a child, prior clarifications stated that FFCRA benefits applied to total school closure; school transition to full-time virtual teaching; and when parents have the option of choosing full-time virtual teaching, full-time onsite teaching, or a hybrid situation. The only time the benefits do not apply is when a school offers only full-time onsite teaching.

Employee Notification

Although prior court action attempted to invalidate the requirement that employees provide documentation of the need to take leave under FFCRA PRIOR to taking the leave, the DOL reinstated but slightly eased the requirement stating the documentation be provided “as soon as practicable”. The DOL decision goes on to state that in most cases, this would be at the time the request for leave is made.

Definition of Health Care Worker

This is the most significant change in the application of FFCRA benefits. The definition of health care worker has vacillated throughout the past months but the new DOL ruling provides much greater clarity but a more restrictive definition. In general, the new definition limits the term to individuals directly involved in the provision of health care. These specifically include:

  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 who process test results necessary to diagnoses and treatment.

While this would include a large portion of a doctor’s employees, the ruling specifically excludes other workers including maintenance, IT professionals, human resource personnel, records managers, and billing agents – in other words, all those employees not directly involved in the provision of non-administrative health care services. These exclusions create real issues for small health care businesses. While it legally allows differentiating (not discriminating) between employees, the impact on employee morale and opinions regarding their job will likely be problematic. In making the decision on applying this rule to each office, it is highly encouraged to remember that the benefits given do provide for a 100% tax credit. All employers may need to revisit their required notification to staff on how they handle FFCRA benefits.