Labor & Employment Law Alert

In response to a court ruling in early August that invalidated certain regulations by the U.S. Department of Labor (DOL) related to leave under the Families First Coronavirus Response Act, the DOL has released revised regulations, which is intended to provide context and clarification as to application in the unique circumstances underlying Covid-19 related disease. The revisions took effect today, September 17, 2020. Highlights of the amendments are set forth below.

Definition of Health Care Provider

The definition of health care provider for purposes of which an employer can deny leave now  includes physicians and others who make medical diagnoses.  This is consistent with a traditional FMLA analysis.  “Healthcare provider”  has been  narrowed so that it includes employees who provide diagnostic services, preventive services, treatment services, or other services necessary for patient care as well as  employees who provide services that, if not provided, would adversely affect patient care.  Nurse assistants and laboratory technicians who process test results are considered health care providers, but IT workers at a hospital and medical billers are not.

Documentation Prior to Leave

Employers may require that employees provide documentation to support their need for leave as soon as practicable but not necessarily before an employee’s leave start.  

Leave During a Furlough or Business Closure

Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA)  continue to be available only where an employer has work available for the employee during the time that they need the leave.

Approval for Intermittent Leave for Childcare

Employees still must get approval from their employer to use intermittent leave. However, the DOL has made it clear that leave is not considered intermittent if a school or daycare is closed on certain days or half days such as where Covid necessitates a hybrid in person/remote  schedule.  In those cases the employer’s consent is not needed as the employee is not requesting intermittent leave.  

Please contact a member of the Bressler Employment Practice Group should you have further questions.  

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