On August 3, 2020, the Southern District of New York issued an opinion invalidating certain portions of the U.S. Department of Labor’s (“DOL”) Temporary Rule on the paid leave requirements of the Families First Coronavirus Response Act (“FFCRA”). The DOL has responded by revising its Temporary Rule. The revision, which goes into effect on September 16, 2020, makes the following changes to the FFCRA’s emergency paid sick leave (“EPSL”) and emergency Family and Medical Leave Act (“EFMLA”):

• Revises the definition of “health care provider” to include only employees who meet the definition of that term under FMLA regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
• Reaffirms the requirement that employees may take FFCRA leave only if work would otherwise be available to them. In other words, employees who are on furlough or are laid off are not eligible for EPSL or EFMLA.
• Reaffirms the requirement that an employee must have employer approval to take FFCRA leave intermittently.
• Clarifies that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
• Corrects an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The change to the definition of “health care provider” is the most significant revision. Under the FFCRA, employers may opt to exempt employees who are health care providers from EPSL and/or EFMLA. Congress’s intent in allowing employers to exempt these employees was to ensure that health care workers would be available to fight the COVID-19 crisis. The DOL’s initial Temporary Rule, however, defined health care provider so broadly that employers in the health care industry could exempt almost any employee, no matter how remote their work was to patient care. The revised Temporary Rule narrows the definition of health care provider considerably. Employers in the health care field who have exempted employees from EPSL and/or EFMLA should consult with legal counsel regarding this revision to ensure that the employees they have exempted meet this new definition.