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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:
EFMLEA for non-health care staff includes:
Currently, these coronavirus leave requirements are in place through December 31, 2020.