Employment Group can assist you with structuring your employment relationships to avoid liability .
1 The case is New York et al v Scalia et al , U . S . District Court , Southern District of New York , No . 20-01689 .
DOL Revises and Clarifies Temporary Rule Relating To the Families First Coronavirus Response Act
On September 11 , 2020 , the Department of Labor ( DOL ) issued revisions to its April 1 , 2020 , temporary rule implementing the Families First Coronavirus Response Act ( FFCRA ). The DOL ’ s revisions go into effect Wednesday , September 16 , 2020 , and were issued in response to an August 3 , 2020 , decision in the United States District Court for the Southern District of New York invalidating four parts of the April rule . See New York v . U . S . Dep ’ t of Labor , No . 20- CV-3020 ( JPO ), 2020 WL 4462260 ( S . D . N . Y . Aug . 3 , 2020 ). Most notably , the New York court rejected the expansive definition of the “ health care provider ” adopted by the DOL for purposes of permitting health care employers to exempt nearly all employees from the paid sick leave and expanded family and medical leave provisions of the FFCRA .
The New York court also objected to the DOL ’ s position that the FFCRA was not available to employees who had already been terminated or furloughed by the employer , that an employer has discretion to decide whether an employee is permitted to take FFCRA leave intermittently , as well as the DOL ’ s position regarding the documentation required of employees before being permitted to take FFCRA leave .
A significant portion of the DOL ’ s revisions focus on the New York court ’ s finding that the FFCRA “ health care provider ” exemption was limited only to those providers who can certify leave under the pre-FFCRA Family and Medical Leave Act requirements . The DOL rejected the New York court ’ s reasoning , and clarified that the “ health care provider ” exemption includes all health care industry employees “ capable of providing health care services , meaning he or she is employed to provide diagnostic services , preventative services , treatments services , or other services that are integrated with and necessary to the provision of patient care and , if not provided , would adversely impact patient care .” See § 826.30 ( c )( 1 ) ( i ) ( A ) and ( B ). The DOL specifically noted that nurses , nurse assistants , and medical technicians or those providing similar services , those who provide assistance to those same employees , and employees such as lab or x-ray technicians who process test results necessary for diagnosis and treatment are included in the exemption . See § 826.30 ( c )( 1 )( ii )( A ) - ( C ). The preamble to the DOL ’ s revisions indicates that the exemption can also include hospital employees who merely transport patients or blood samples within the hospital , provided the position is required to render complete patient care .
The DOL did concede , however , that exempting all employees of a health care entity – which focuses on the nature of the employer versus the job duties of the employee – was an overbroad interpretation of the FFCRA . Therefore , the DOL ’ s revisions clarify that many support and administration positions in the health care industry are unlikely to qualify for the leave exemption under the revised rule . IT professionals , building maintenance staff , human
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