This past spring, the U.S. Department of Labor (DOL) introduced the Families First Coronavirus Response Act (FFCRA) to ensure that employees are able to access paid sick leave or expanded family and medical leave for various hardships associated with the COVID-19 pandemic. As the pandemic continues to affect the ability of working parents to plan for children’s school and care provider closures, the DOL is continually revising and updating this guidance to help Americans preserve their employment during this time of uncertainty.
As of September 16, 2020, the DOL has added specific guidance that directly affects healthcare practices and organizations, making it particularly important for practice leaders to understand the nuances of the FFCRA and ensure compliance within their leave policies.
Key changes to the FFCRA include:
- Updates to the guidance clarified that employers do not need to provide paid leave when no work is available (i.e., the employee is on furlough), as the employee should be eligible for unemployment benefits. However, this does not mean that employers should “elect” to place someone on furlough because they request leave.
- The DOL addressed a New York court ruling which stated that the requirement for employers to approve intermittent leave is overly broad. In response, the DOL adjusted their guidance on this topic. Intermittent leave still needs to be approved by employers, but if a child is out of school due to the school closing for in-person classes and the days are not continuous, this is a “brand new request for leave” versus an “intermittent” leave, and it must be permitted by the employer. As in previous guidance, if a decision to keep a child at home is made on the part of the parent, not the school, FFCRA would not apply. Employees must give notice of the days when the child will not be at in-person school as soon as possible.
- The DOL clarified the definition of healthcare providers to whom companies do not have to grant FFCRA leave. In the past, the term healthcare provider could be construed to cover anyone who works at a healthcare organization, from billing to patient care. However, new guidance advises that ONLY the following healthcare employees may be denied leave (we advise employers to use this information judiciously):
– Any provider who, under current FMLA regulations, can certify FMLA leave (e.g., doctors, nurses, etc.)
– Preventative, diagnostic, treatment, and other service providers who are integrated with and necessary to the provision of patient care, which if not provided, would adversely affect care quality. This will not include workers in information technology, billing, building services, reception, etc., who are not directly involved with services relating to a patient’s health.
- Updates to the guidance clarified that documentation of a request doesn’t have to be provided prior to taking leave, but as soon as practicable. In many cases, this may be at the time of leave, but in others, it could be after leave has begun.
Curi members can learn more about this and other topics by listening to the 2020 HR|Experts mini-webinar, titled Remote Education and The FFCRA.
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