The federal DOL has narrowed its definition of a “health care worker” who can be exempt from the FFCRA provisions. In addition, a new California law effective this month allows otherwise FFCRA-exempt health care workers to receive 80 hours of sick time - mirroring the FFCRA, but without the corresponding federal tax credit.
Late in the day on Friday, September 11, 2020, the Wage and Hour Division of the federal Department of Labor (DOL) issued a news release indicating that it had modified, clarified and corrected portions of the Families First Coronavirus Response Act (FFCRA) regulations. At that same time, the DOL also issued four amended FFCRA FAQs (Nos. 16, 21, 22, 56), and added three new FAQs (Nos. 101-103).
The DOL’s modifications respond to the August 3, 2020 decision of the U.S. District Court for the Southern District of New York, which invalidated and vacated several key portions of the FFCRA’s regulations. This federal court decision left employers unsure about how to comply with the FFCRA mandates. That confusion is now resolved (until the next challenge).
The DOL’s latest updates provide one modification, three clarifications, and one correction. These changes include revising the definition of "health care provider," explaining the requirement that employees may take FFCRA leave only if work would otherwise be available, addressing the need to have employer approval to take intermittent FFCRA leave, clarifying that employees must provide required documentation as soon as practicable to support a request for FFCRA leave, and correcting an inconsistency regarding the timing of an employee’s need to take expanded FMLA.
Focusing specifically upon the amendments to the DOL’s definition of health care provider, the DOL has now narrowed the scope of those personnel in health-related fields who may be exempt from FFCRA benefits.
Under the April 1, 2020, FFCRA regulations, the definition of the term “health care provider” was extremely broad. It included a health care organization’s support workers who did not provide direct care, such front office staff, billers and coders. The Southern District of New York took exception to this broad category, finding that a "health care provider" must be a person capable of providing health care services, not someone doing work remotely related to someone else’s provision of health care services.
In response to the Court’s sharp criticism, the DOL modified the FFCRA regulations to narrow the scope of the health care provider exemption, revising FAQ 56 to state that health care providers who may be excluded from FFCRA benefits include licensed doctors of medicine, nurse practitioners, or other health care providers permitted to issue a certification for purposes of the FMLA (“first group”), as well as “any other person 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.”
The DOL provided a number of examples of covered health care workers. However, it also clarified that a “person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services.” The newly-explained definition would exclude those employees working with a health care provider but doing tangential work such as coding, billing and administrative services.
While certain essential health care providers and employers with 500 or more employees have been excluded from receiving benefits under the FFCRA, California has now jumped in to provide alternative benefits to cover that gap. AB 1867, signed into law by Governor Newsom on September 9, 2020, establishes a COVID-19 Supplemental Paid Sick Leave (CSPSL) benefit for those employees who would be ineligible for FFCRA benefits. The new law has several far-reaching and substantial COVID-19 implications for California employers.
Who is a covered entity under AB 1867 for purposes of CSPSL?
Unlike the FFCRA, AB 1867 requires private employers with 500 or more employees nationwide to provide CSPSL to California employees, if they are not already providing FFCRA or other paid time off benefits specifically related to COVID-19.
With regard to health care providers, AB 1867 requires both public and private health care employers to provide CSPSL to their employees, if they are not already providing FFCRA or other paid time off benefits specifically related to COVID-19.
When is a covered worker eligible for CSPSL under AB 1867?
Employees are eligible for CSPSL under some of the same conditions established by the FFCRA: the covered worker must be one who is (A) subject to a federal, state or local quarantine or isolation order related to COVID-19; (B) advised by a health care provider to self-quarantine or self-isolate due to COVID-19 concerns; or (C) prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19. Note that this would include an employer-imposed quarantine for 14 days to protect the workplace from an employee that has or may have been exposed to COVID-19.
How much CSPSL will a covered employer have to provide to an eligible employee?
Full-time workers are entitled to 80 hours of supplemental paid sick leave if they are considered by the employer to be “full time” or they worked at least 40 hours per week on average in the preceding two weeks. Part-time workers receive (A) two weeks of paid sick leave based upon the number of hours they typically work in a two-week period, (B) 14 times the average daily hours worked in the preceding six months, or (C) the total number of hours worked in a two-week period by a person who has been employed for two weeks or less.
As with FFCRA sick leave, the California CSPSL hours must be granted in addition and prior to “any paid sick leave that may be available” under an employer’s regular paid sick leave benefits (including California-mandated sick leave and voluntary company-sponsored sick leave). Employers cannot require that employees use their normal sick leave or other paid time off benefits before using CSPSL, or in lieu of CSPSL. It is the employee, not the employer, who decides the amount of CSPSL the employee will use (up to the maximum allotted hour limits noted above).
At what rate is CSPSL paid?
A covered worker is paid at the highest of (A) the regular rate of pay earned in the last pay period, (B) the state minimum wage, or (C) the local minimum wage applicable to the employee. As with the FFCRA, the benefit is capped at $511 per day and $5,100 in the aggregate.
How does AB 1867 apply to health care workers exempt from the FFCRA?
CSPSL benefits are applicable to any entity subject to the FFCRA (whether public or private) who employs health care providers or emergency responders, but has “…elected to exclude such employees from emergency paid sick leave under the federal Families First Coronavirus Response Act.” In simpler terms, even if an employer could exclude a particular employee from FFCRA Emergency Paid Sick Leave (“EPSL”) under the revised health care provider exemption, the public or private employer will then be required to provide that employee with California’s CSPSL under AB 1867.
Does the California employer receive tax credits to offset payment of CSPSL?
No. Note that offering EPSL benefits under the FFCRA entitles an employer to tax credits/offsets or tax reimbursements, but offering California’s CSPSL provides no such tax relief. As a result, impacted employers with less than 500 employees may choose to voluntarily offer FFCRA EPSL benefits to health care employees who could otherwise legitimately be exempted under the new “health care provider” exemption. Because employers with 500 or more employees are not subject to the FFCRA as a matter of law, no tax credits would be available even if the employer opted into the FFCRA.
When does AB 1867 take effect?
AB 1867 creates California Labor Code Section 248.1. It is set to become effective “not later than 10 days after the date of enactment,” which is Saturday, September 19, 2020.
The California Labor Commission is required to publish a model notice by September 16, 2020. Employers must post the notice in the workplace, and may provide it electronically or by mail to remote workers.
Employers are urged to review the DOL's newly modified, clarified and corrected FFCRA FAQs as well as the formal FFCRA regulations (once published on September 16, 2020), in their entirety to understand the full scope of their obligations under the FFCRA. Employers of health care employees should also carefully review and consider AB 1867 before choosing whether to opt in or out of the FFCRA using the health care provider exemption.
To find further information:
For questions regarding the above, or to obtain legal assistance regarding COVID-19 issues or other employment questions specific to your company, contact the employment attorneys at LightGabler.