On March 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor announced that it is amending its FY 2020 Corporate Scheduling Announcement List (CSAL) for federal supply and service contractors to forego “compliance checks” and “focused reviews” on that list that are not currently underway. Contractors that were identified for a compliance check or focused review in the FY 2020 CSAL should check the amended FY 2020 CSAL to determine whether they are listed for any other type of review. Notably, OFCCP’s announcement does not cancel its more fulsome compliance reviews, impact any reviews from prior lists (e.g., the FY 2019 CSAL) or open reviews, or make any changes to reviews that are pending for construction contractors (which are subject to a different CSAL).
As we previously discussed, employers with fewer than 500 employees will no longer be legally required to provide employees with leaves of absence under the Families First Coronavirus Response Act (FFCRA). As of January 1, 2021, covered employers may choose to voluntarily provide such leave through March 31, 2021, and continue to take tax credits for doing so.
Although FFCRA leave may now be an employer elective, covered employers in states and local jurisdictions that have passed their own COVID-19 leave laws may remain obligated to provide their eligible employees with COVID-19 leave. We previously discussed an expansion of Washington D.C.’s COVID-19 leave obligations through March 31, 2021. To a similar end, New York employers also have continuing COVID-19 leave obligations into 2021, and perhaps beyond. Continue Reading NY employers’ continuing COVID-19 leave obligations…for the foreseeable future
On January 11, 2021, District of Columbia Mayor Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (the Act). The Act has significant implications for D.C. employers, even those that do not use non-competes or other restrictive covenants. Among other things, the Act:
- Bans nearly all employee non-competes, whether contained in a written agreement or a workplace policy (although non-competes in effect before the Act becomes law remain enforceable).
- Not only bans post-employment non-competes (e.g., prohibiting an employee from working for a competitor for a certain amount of time after employment ends), but also bans restrictions on an employee taking another job or running the employee’s own business during employment.
- Requires covered employers to provide a notice pertaining to the Act to current employees (within 90 days of the Act becoming law), new hires (within seven days of hire), and employees upon request (within 14 days of request).
- Employers who violate the Act face potential administrative penalties and may be sued by the D.C. Attorney General or by employees via a private right of action.
Absent Congressional action, the Act will become effective following a mandatory 30-day Congressional review period and publication in the District of Columbia Register. This blog post answers some of the most frequently asked questions about the Act.
Which employers and employees are covered by the Act? The Act applies to private employers “operating in the District.” It does not apply to the Federal or District of Columbia governments.
“Employee” is defined broadly as “an individual who performs work in the District on behalf of an employer,” as well as prospective employees the employer “reasonably anticipates will perform work on behalf of the employer in the District.” The Act excludes from the definition of “employee” volunteers engaged in activities for charitable, educational, religious, and nonprofit organizations; certain lay persons who hold office in religious organizations; “casual babysitters”; and “medical specialists.” (Medical specialists – defined as licensed physicians who have completed a residency, work for an employer engaged primarily in the delivery of medical services, and earn at least US$250,000 per year – may sign non-competes when certain requirements are met.)
It seems clear that the Act covers employees assigned to work at their employers’ worksites within the District. It also seems clear that the Act does not prohibit D.C.-based employers from entering into non-competes with employees whose work is performed entirely outside of the District. However, the Act’s application to other situations is uncertain. For example, is an employer that has employees working in the District, but does not itself have a D.C. office, “operating in the District”? Is an employee who primarily works outside the District but occasionally works in the District covered by the Act? The devil is in these details for multi-jurisdictional employers, particularly with many employees currently teleworking due to the COVID-19 pandemic.
What does the Act prohibit? The Act broadly bans agreements and workplace policies that prohibit an employee from: (1) being employed by another person; (2) performing work or providing services for pay for another person; or (3) operating the employee’s own business. Significantly, this ban extends not only to post-employment restrictions (e.g. a prohibition on working for a competitor for one year after employment), but also to agreements and policies prohibiting employees from working for others or themselves while still employed (so-called anti-“moonlighting” provisions).
Employers are understandably concerned about the impact of the Act’s ban on restrictions of concurrent employment, particularly as applied to high-level employees, whose work for another employer (or their own business) can cause substantial competitive or other harm. The Act specifically states that employers can continue to enforce otherwise lawful restrictions on the disclosure of confidential information and trade secrets. However, the Act is silent regarding the continued legality of non-solicitation provisions, which impose restrictions on current and/or former employees’ contacts with customers, vendors, or other employees. The Act is also silent as to its interaction with current employees’ common law duty of loyalty to employers, standard conflict of interest rules, and other policies commonly used to prevent unfair competition by employees, such as prohibitions on performing non-work activities during working time, or while using employer-provided devices.
What about currently-existing non-competes and restrictive covenants? Current non-competes and restrictive covenants are not invalidated. The Act applies only to agreements entered into once the Act becomes law.
Does the Act apply in the context of the sale of a business? The Act does not apply in the context of the sale of a business, when the seller contemporaneously agrees not to compete with the buyer’s business.
What notice must be provided to employees? The Act requires that, within 90 calendar days of the Act becoming law, employers must provide all covered employees the following notice: “No employer operating in the District of Columbia may request or require any employee working in the District of Colombia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Act of 2020.”
Additionally, new employees must be provided with that notice within seven calendar days of their hire date, and employees who request the statement must receive it no later than 14 calendar days after making the request.
Does the Act prohibit retaliation? Yes. The Act prohibits employers from retaliating against employees who refuse to agree to or comply with an unlawful non-compete, or who ask or complain about a non-compete that the employee believes to be prohibited under the Act, or who requests information that the employer is required to provide under the Act.
What are the consequences of violation? The Act may be administered and enforced by the Mayor and Attorney General and by employees through a private right of action. Employers are subject to fines ranging from between US$350 and US$1,500 per violation, depending on the nature of the violation, and increased fines for multiple violations. Employees may assert that they are entitled to recover amounts under D.C.’s wage theft law, such as back pay, liquidated damages equal to triple the back pay, and attorneys’ fees, and may attempt to bring claims as a class action under the wage theft class action procedures.
When does the Act become law? As noted above, the Act becomes effective following a 30-day Congressional review period, if Congress does not disapprove it, and publication in the D.C. Register. It will apply when its fiscal impact is incorporated in an approved D.C. budget and financial plan.
Will D.C. provide additional guidance? The Act requires the Mayor to issue rules implementing the Act, including rules imposing specific recordkeeping obligations on employers.
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For more information regarding how the Act affects your workplace or other questions about non-compete agreements, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.
As we explained in a recent post, as of January 1, 2021, COVID-19 leave is no longer mandated under the federal Families First Coronavirus Relief Act (FFCRA), although covered employers who voluntarily provide paid leave outlined in the FFCRA may take advantage of the FFCRA tax credit through March 31, 2021. Notwithstanding this change in federal law, District of Columbia employers should be aware of their continuing obligations to provide leave to eligible employees for COVID-19 related reasons at least through the first quarter of 2021 under D.C. law.
In March 2020 the D.C. Council passed temporary emergency laws creating two “buckets” of COVID-19 leave, paid and unpaid, for District employees. D.C.’s COVID-19 leave laws last for the duration of the Mayor’s declared COVID-19 public health emergency, which the Mayor recently extended through March 31, 2021. Broadly speaking, the two D.C. laws provide that:
- All employers with one or more employees in D.C. must provide eligible employees with up to 16 weeks of unpaid, job-protected leave if the employee is unable to work because (a) a healthcare provider has recommended the employee isolate or quarantine, including because the employee or a household member of the employee “is at high risk from serious illness from COVID-19”; (b) the employee is caring for a family or household member under quarantine or isolation; or (c) the employee needs to care for a child whose school or place of care is closed or childcare provider is unavailable due to the pandemic.
- Employers with between 50 and 499 employees (other than healthcare providers) must provide up to 2 weeks of paid sick leave for “any of the reasons for which federal paid leave is available” under the FFCRA’s six qualifying reasons for paid sick leave. Because paid federal leave is no longer mandatory, there may be some uncertainty whether the D.C. paid leave provision still applies. We will be watching for additional guidance on this.
Employers subject to the Families First Coronavirus Relief Act (FFCRA or the Act) should be aware that they are no longer required to provide paid leave to employees for the COVID-19 related reasons specified in the Act. In the Consolidated Appropriations Act, 2021 (CAA), which became law on December 27, 2020, Congress allowed the FFCRA leave mandate to sunset effective December 31, 2020. However, Congress retained the FFCRA tax credit through the first quarter of 2021. This means that covered employers may voluntarily provide FFCRA leave to eligible employees through March 31, 2021, in which case they can recover the costs of the leave through the FFCRA’s fully refundable tax credit.
As a reminder, the FFCRA generally applies to private employers with up to 499 employees. (The Act also applies to public sector employers, with certain exceptions, but the tax credit does not apply to them.) Information about FFCRA leave, including employer coverage, employee eligibility, qualifying leave reasons, paid leave entitlements, documentation requirements, and the tax credit, can be found in our prior FFCRA blog posts, available here.
Note that the CAA does not restart the clock on FFCRA leave; therefore, employers cannot claim the tax credit for providing additional leave to employees who already exhausted their FFCRA leave entitlements in 2020. However, some uncertainty may exist for employees whose employers measure their entitlement to 12 weeks of Family and Medical Leave Act (FMLA) leave in a 12-month period using the “calendar year” method. It is unclear whether such employees are entitled to an additional 12 weeks of expanded FMLA leave under the FFCRA (i.e., leave to care for a son or daughter whose school or place of care is closed or child care provider is unavailable due to COVID-19) for which the employer can take an additional tax credit. Employers should watch for guidance on this issue from the Department of Labor (DOL) and the Internal Revenue Service (IRS).
Even though the FFCRA leave mandate has expired, employers still must pay employees for any qualifying leave taken through December 31, 2020, as DOL pointed out in its latest FFCRA Questions & Answers. Some employers may also have continuing obligations to provide paid COVID-19 leave in 2021 under state or local laws. Employers who continue to provide FFCRA leave voluntarily should comply with all FFCRA documentation requirements and provide the leave consistently to all eligible employees in order to avoid discrimination claims.
For questions about COVID-19 leave requirements applicable to your workplace, contact an author of this blog post or the Hogan Lovells lawyer with whom you regularly work.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to address COVID-19 vaccines in the workplace. The EEOC’s guidance implies that a mandatory workplace vaccination program is lawful under the Americans with Disabilities Act (ADA) and the other laws the EEOC administers provided that the employer provides disability and religious exemptions. Nonetheless, employers must consider a number of practical and legal considerations in deciding whether and how to implement a mandatory program in the workplace.
If an employer adopts a mandatory vaccination program, it must be prepared to provide exemptions to employees on the basis of disability and sincerely-held religious beliefs. Both disability and religion are defined broadly under federal law. When an employee requests a disability or religious exemption, the employer must undertake the following analysis:
- If an employee makes a request for an exemption on the basis of disability, in deciding whether to grant the exemption, the employer must determine whether allowing the unvaccinated employee to enter the workplace will create a “direct threat,” and if so, whether that risk can be reduced through reasonable accommodation without creating undue hardship to the business. Direct threat means a significant risk of substantial harm to the employee or others in the workplace. The test is more likely to be met in high-density or high-risk workplaces such as health care, meat processing, or similar environments. Whether it can be met in office environments remains unclear.
- If an employee requests an exemption on the basis of religion, in deciding whether to grant the exemption, the employer must conduct a similar analysis of whether a reasonable accommodation will allow the unvaccinated employee to work on-site without causing undue hardship. (Note that no “direct threat” analysis is required for religious exemptions.)
- If an employee requests a disability or religious exemption, but allowing the employee to work on-site would pose a direct threat or accommodating the employee would create an undue hardship, the employer should not automatically terminate the employee. Instead, the employer should first consider other options such as telework and leave under applicable laws or employer policies.
According to the EEOC, if an employer wishes to administer vaccines to employees itself, or contract with a third party to do so, it must meet a heightened legal standard. This is because screening questions are required to be asked before administration of a COVID-19 vaccine. The EEOC considers such questions to be disability-related inquiries that may only be asked if they are “job-related and consistent with business necessity.” The EEOC explains that to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” The EEOC states that this heightened need not be met if the employer requires employees to obtain vaccines independently.
Before implementing a mandatory vaccination program, employers should also consider other legal and practical issues. For example, non-exempt (hourly) employees should be paid for the time it takes them to get a mandatory vaccine, and employers in certain states are required to reimburse employees for out-of-pocket costs relating to obtaining a vaccine. Employers should also consider providing leave to employees who experience side effects after receiving the vaccine, and/or as an incentive to receive the vaccine; whether they have collective bargaining obligations with unionized employees; and how they will abide by documentation and recordkeeping requirements (including maintaining medical and vaccination information in a separate confidential file).
Employers, particularly those in office settings, should consider whether encouraging, rather than mandating, vaccines is a better approach. Voluntary programs may result in fewer vaccinated employees, but voluntary programs also may have positive morale benefits, cost savings, and reduced administrative burdens and disputes relating to exemptions. The cost-benefit analysis of a mandatory vaccination program will differ depending on the workplace and industry. For instance, mandating a vaccine for a workplace in an industry with high infection rates may result in significant safety risk reduction, which could outweigh the downsides of a mandatory vaccine.
Significantly, there is presently a very limited supply of COVID-19 vaccines in the United States. Because a mandatory program is futile unless employees have access to the vaccine, most employers are not in a position at this time to implement a mandatory program. Employers should watch closely for developments on vaccine supply as well as further laws and guidance from federal, state, and local authorities.
Additionally, it is important to note that the EEOC’s guidance does not have the force of law. It could be changed or updated by the EEOC, and how the agency and courts will apply the EEOC’s standards remains to be seen. State or local laws also could impose different standards. To mitigate against legal risk, employers adopting mandatory vaccination policies should develop strong business justifications and follow recommendations of all relevant governmental authorities in establishing and administering the program.
For further information regarding COVID-19 vaccine policies or other issues relating to your workplace, contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.
Employers in New York should be aware of the state’s new paid sick leave law, which was enacted on April 3, 2020 and went into effect on Wednesday, September 30. This state-wide law includes employers in New York City and Westchester County where preexisting paid sick leave laws remain in effect. Notably, unlike many other leave laws passed during the COVID-19 pandemic, the state law will have permanent effect.
Under the new law, the amount of leave that an employer must provide varies based on how many employees it has and, in some cases, on the employer’s net income:
- Employers with 100 or more employees must provide up to 56 hours of paid sick time per year;
- Employers with fewer than 100 employees must provide 40 hours of paid sick leave;
- Employers with fewer than five employees and a net income in excess of $1 million in the previous tax year must provide 40 hours of paid sick leave; and
- Employers with fewer than five employees and a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid sick leave.
The law does not address whether, in applying the employee thresholds, employers should count only employees in New York, or employees everywhere.
Paid sick leave accrues at a rate of one hour per every 30 hours worked, up to the available accrual, unless an employer elects to frontload all sick time at the beginning of the year. If an employer elects to frontload sick leave for its employees, it cannot reduce the amount of sick leave available to employees later in the year if the employees do not work sufficient hours to accrue the frontloaded amount. Employers must allow employees to carry all unused sick leave over to the following year, but an employer may limit the amount of leave taken each year (40 hours for employers of fewer than 100 employees, 56 hours for employers of 100 or more employees). Employers may also set a “reasonable” minimum increment for each use, not to exceed 4 hours. Employers are not required to pay out unused sick leave at the end of employment.
Employees can take leave for a number of reasons, including:
- For the employee’s, or a covered family member’s, mental or physical illness, injury, or health condition, regardless of whether that illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests leave;
- For the diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventive care for, the employee or a covered family member; or
- Certain absences related to an employee’s, or a covered family member’s, status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking.
The term “family member” is broadly defined under the law to include an employee’s child (biological, adopted, or foster child; a legal ward; or a child of an employee standing in loco parentis), spouse, domestic partner, parent (biological, foster, step, or adoptive parent; legal guardian; or person who stood in loco parentis when the employee was a minor child), sibling, grandchild, or grandparent, and the child or parent of an employee’s spouse or domestic partner. Notably, this definition is broader than New York’s Paid Family Leave Law because it extends to siblings, and broader than the federal Family Medical Leave Act because it extends to siblings and grandparents.
In addition, employers should be aware that, under the new law:
- An employer is required to track the amount of sick leave provided to each employee and maintain this information in its payroll records for six years. An employee may request in writing or verbally that an employer provide a summary of the amount of sick leave accrued and used by the employee, which the employer must provide within three business days of the request.
- Employers may not require an employee to disclose any confidential information in verifying his or her need to take leave. (“Confidential information” is undefined in the statute.)
- Employees have a right to reinstatement and protections against retaliation for exercising rights under the new law.
Although the law is currently in effect, and employees begin accruing on September 30, 2020, employees may not use leave under the law until January 1, 2021. Nonetheless, employers selecting an accrual method (rather than frontloading) must be prepared to start tracking accrual, providing information upon request regarding accrual, to carry over accrued time for employee use starting January 1, 2021. Likewise, employees may be required to display a poster, or otherwise provide notice of employee rights under the law, once such notice is promulgated by the New York State Department of Labor. Employers should also review their employee handbooks to ensure that existing sick leave policies meet the requirements of the law.
The New York State Department of Labor Commissioner is authorized to adopt regulations and guidance to effectuate the law, and New York employers should continue to monitor this blog for updates. Employers with any questions are encouraged to contact the authors of this blog post or the Hogan Lovells lawyer with whom they normally work for additional information.
The U.S. Occupational Safety and Health Administration (OSHA) has issued revised guidance in the form of three new Q&As on its website further clarifying when employers must inform OSHA if employees are hospitalized or die due to COVID-19.
By way of background, any on-the-job illness or injury that leads to hospitalization must be reported by the employer within 24 hours of the hospital admission, if the admission was within 24 hours of the work-related incident that led to the hospitalization. The former guidance was not clear on the meaning of “work-related incident” in the context of COVID-19. The new guidance clarifies that a work-related incident in the context of COVID-19 means exposure to COVID-19 in the workplace. In other words, an employer must report a hospitalization within 24 hours of determining both that (1) the employee has been in-patient hospitalized due to COVID-19; (2) the hospitalization occurred within 24 hours of COVID-19 exposure in the workplace.
The new guidance for workplace fatalities is similar. In order to be reportable, a fatality must occur within 30 days of a work-related incident. Because the guidance explains that exposure to COVID-19 in the workplace is a work-related incident, an employer must report the fatality within eight hours of determining both (1) that the employee has died due to COVID-19; and (2) death occurred within 30 days of a COVID-19 exposure in the workplace.
In order report a fatality or in-patient hospitalization, employers may do any one of the following:
- Call the nearest OSHA office;
- Call the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
- By electronic submission, report online.
Employers should be prepared to supply: business name; name(s) of employee(s) affected; location and time of the incident; brief description of the incident; and contact person and phone number so that OSHA may follow-up (unless the report is made anonymously).
Employers should remember that they continue to have a duty to investigate whether COVID-19 infections are work-related (i.e., the product of a work-related exposure), as we discussed in a prior blog post. Likewise, OSHA’s new guidance emphasizes that it does not alter employers’ duties to record (as opposed to report) COVID-19 infections.
Because OSHA continues to refine its guidance, employers should monitor OSHA’s website and this blog regularly for the latest updates. As always, please consult one of authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance in implementing compliant OSHA policies, or with questions about other COVID-19 issues or matters affecting your workplace.
Three members of our Hogan Lovells team, Kenneth Kirschner, David Baron, and Sydney Rupe, are the authors of the lead article in the Fall 2020 issue of the Labor Law Journal, which analyzes the plaintiff’s duty to mitigate damages in the wake of COVID-19. The article, entitled “Plaintiff’s Duty to Mitigate Damages in the COVID-19 Era” provides in-depth insights into how COVID-19 is shaping the employment law landscape, the state of the job market, closures and layoffs, and what to expect in the “new” workplace. The full article can be accessed here. As always, please consult one of the authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance with questions about COVID-19 issues or matters affecting your workplace.
On September 11, 2020, the Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA), which generally requires employers with fewer than 500 employees to provide paid sick leave and expanded Family and Medical Leave Act (FMLA) leave for certain COVID-19 related reasons. (We previously summarized the FFCRA’s leave requirements here.) The revisions are in response to an August 3 New York federal court decision, which held that four provisions of the original regulations were invalid, either because DOL failed to adequately explain its reasoning, or because the court believed that DOL’s interpretations were inconsistent with the FFCRA. The revisions, which go into effect September 16, reaffirm and provide further explanation for two of the provisions and amend two others. Specifically, the revised regulations:
- Reaffirm that employees are not eligible for FFCRA leave if the employer has no work available for them to perform;
- Reaffirm that intermittent leave under the FFCRA requires the employer’s consent, and clarify that leave taken because of a child’s hybrid school schedule is not intermittent leave;
- Narrow the definition of “health care providers” whom employers can exclude from FFCRA coverage; and
- Clarify when employers can require employees to provide notice of a need for FFCRA leave and supporting documentation.
DOL also updated its FFCRA FAQs to reflect changes to the regulations.
All other provisions of the original regulations are unchanged. DOL’s FFCRA regulations remain in effect through the FFCRA’s current December 31, 2020 expiration date. The revised regulations are discussed in greater detail below.
Work availability rule
The revised regulations reaffirm DOL’s original position that FFCRA leave is not available to employees whose employers have no work available for them. This means that if the employee has no work for the employee to perform (e.g., if the employee is on furlough), the employee is not eligible for FFCRA leave even if the employee has an FFCRA-qualifying reason for leave. The revised regulations clarify that this rule applies to all of the qualifying reasons for which leave may be taken under the FFCRA.
The revised regulations further clarify that the employer must have a legitimate, nondiscriminatory reason as to why work is unavailable (such as temporarily ceasing operations or furloughing employees due to COVID-19). For example, an employer may not place an employee on furlough to prevent the employee from taking FFCRA leave, but an employer may place employees on furlough due to a legitimate business downturn.
DOL has also reaffirmed its original position regarding intermittent leave, including that an employee may take intermittent leave only with the consent of the employer:
- If the employee is working on-site:
- Intermittent leave is available if the reason for leave is to care for a child whose school or place of care is closed or childcare provider is unavailable, but only if the employer consents. Leave must be taken in full-day increments.
- Intermittent leave is unavailable for any other FFCRA qualifying reason, in order to avoid the risk that the employee could expose others to the virus.
- If the employee is teleworking:
- Intermittent leave is available for any FFCRA-qualifying reason and may be taken in any increment, provided that the employer consents to the intermittent leave schedule.
According to DOL, the employer consent requirement for intermittent leave “balances the employee’s need for leave with the employer’s interest in avoiding disruptions.”
The revised regulations clarify that leave needed because of a child’s hybrid school schedule is not intermittent leave. For example, if the child is required to attend school Monday, Wednesday, and Friday and to do distance learning on Tuesday and Thursday, leave taken to care for the child on Tuesday and Thursday is not intermittent leave and does not require the employer’s consent.
As a reminder, a school is “closed” for purposes of FFCRA leave if the parent does not have a choice to send their child to school. If a parent elects to keep their child home for all of part of the week, the school is not considered “closed” during the time the child stays home at the election of the parent.
Definition of health care provider
The new regulations narrow the definition of “health care providers” whom employers may exclude from the leave provisions of the FFCRA. (The definition of “health care provider” for purposes of determining who can advise an employee to quarantine for COVID-19 reasons remains unchanged). The court found that DOL’s original definition was overly broad because it covered employees whose roles had no nexus to the actual provision of health care services. Under the revised regulations, “health care provider” is now more tightly focused on employees involved in the provision of medical care, and includes only:
- A licensed doctor of medicine, nurse practitioner, or other health care provider authorized to issue a certification under FMLA regulations; or
- Any other employee who “is employed to provide diagnostic services, preventive services, treatment 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.” This includes employees who directly assist or are supervised by a direct provider in providing such services. For purposes of this rule:
- Diagnostic services include “taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results”;
- Preventive services include “screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems”;
- Treatment services include “performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments”; and
- Integrated and necessary services that, if not provided, would adversely impact patient care, include “bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”
Under the revised regulations, the definition of “health care provider” includes, for example, nurses, nurse assistants, medical technicians, and laboratory technicians who process test results to aid in diagnosis and treatment. Excluded are employees who do not themselves provide health care services, “even if their services could affect the provision of health care services,” such as IT professionals, building maintenance staff, human resources personnel, cooks and food service workers, and records and billing employees.
Timing of employee notice and documentation
DOL made two changes regarding when employees must provide notice and documentation of the need for FFCRA leave:
- Timing of employee notice: The original regulations provided that employers could not require employees to give notice of the need for either paid sick leave or expanded FMLA leave until after the first workday on which such leave is taken. DOL has revised this rule to state that notice may be required for expanded FMLA leave (i.e., leave for childcare reasons) as soon as practicable, which will ordinarily be before the leave is taken, when the leave is foreseeable. The rule regarding timing of employee notice for paid sick leave remains unchanged.
- Timing of employee documentation: Whereas the original regulations required employees to provide supporting documentation of the need for FFCRA leave “prior to taking” leave, under the revised regulations, documentation is required as soon as practicable. According to DOL, this will normally be at the same time as the employee gives notice. The type of documentation that employees must provide remains unchanged.
DOL’s revised regulations eliminate the uncertainty created by the court’s ruling. Employers should follow the revised regulations and conform their leave policies accordingly. This includes ensuring compliance with the latest DOL guidance regarding FFCRA leave for different types of school schedules. Employers should also confirm that their leave request forms are consistent with the changed rules, including on the definition of health care provider, where applicable, and the notice and documentation requirements. Employers previously treating their entire workforce as exempt under the “health care provider” exemption should reconsider whether the revised definition of health care provider requires coverage for some employees.
Because DOL continues to refine its FFCRA guidance, employers should monitor DOL’s website and this blog regularly for the latest updates. As always, please consult one of authors of this article or the Hogan Lovells attorney with whom you regularly work for assistance in implementing compliant FFCRA policies, or with questions about other COVID-19 issues or matters affecting your workplace.