Update to Paid Leave Requirements of the Families First Coronavirus Response Act

On September 11, 2020, the U.S. Department of Labor (DOL) issued an update to the temporary rule the DOL issued in April regarding the paid sick leave and emergency family and medical leave expansion act (EFMLEA) requirements under the Families First Coronavirus Response Act.

Under the DOL’s original rule, all employees of a health care provider were not required to be provided paid sick leave. Under the DOL’s new rule, only employees defined as health care workers are not required to be provided paid sick leave, while all other employees of a health care provider are required to be provided paid sick leave and expanded family and medical leave. The DOL’s new rule goes into effect on September 16, 2020, and applies to employers with fewer than 500 employees, including nursing facilities and assisted living providers. Aggregation of employees across locations is possible in certain instances.

Providers are encouraged to work with their employment counsel as soon as possible to determine whether these leave provisions apply. Further details are as follows:

This revision was issued in response to a district court decision in New York which found part of the original rule invalid. The revisions impact the definition of a health care provider which can be exempted from the paid sick leave and EFMLEA requirements. The new definition is limited to those providing health care services and those reporting to health care providers. This definition includes employees who may not directly interact with patients but provide services that are integrated with and necessary for the provision of patient care. Examples of duties considered necessary for patient care include bathing, dressing, and feeding a resident who cannot perform the activity independently. For long-term care, providers this could include CNAs, PCAs, and others providing direct care. Previously, all employees, regardless of job activity, in a health care facility were included in the broad definition of health care provider and thus excluded from the paid leave requirements.

DOL defines covered employees as “employees who do not provide health care services, even if their services could affect the provision of health care services.” Examples include building maintenance staff, human resources personnel, cooks, food service employees, and records and billing staff.

Covered paid sick leave for non-health care staff includes:

• Up to two (2) weeks of COVID-19-related paid sick leave if an employee is
  • Under quarantine order from a government entity (local, state or federal);
  • Advised by a health care provider to self-quarantine;
  • Experiencing symptoms of COVID-19 and seeking medical diagnosis;
  • Caring for another who meets any of the above conditions; or
  • Caring for a child whose school or childcare provider is closed due to COVID-19-related reasons.

EFMLEA for non-health care staff includes:

• Up to 12 weeks of expanded family and medical leave, some of which is paid in certain circumstances, if unable to work due to need to care for a child whose school or childcare provider is closed due to COVID-19-related reasons.

Currently, these coronavirus leave requirements are in place through December 31, 2020.