DOL Issues Update on Expansion of FMLA | News

April 6, 2020

September 18, 2020 Update - The DOL, in response to a recent US District Court for the Southern District of New York decision striking down four provisions of the DOL's “Final Rule” regarding the Families First Coronavirus Response Act (FFCRA), issued clarifications on September 10. The most notable change is the DOL narrowed the health-care providers exclusion. The revised version of the final rule goes into effect September 16, 2020. The information below has been updated to reflect this updated definition.

Previously, the US Department of Labor’s Wage and Hour Division (WHD) published guidance on the new Family Medical Leave Act (FMLA) benefits under the Families First Coronavirus Response Act (FFCRA), which went into effect on April 1. Notably, the DOL accepted APMA's strong recommendations that health-care providers’ offices be included automatically with exempted medical providers and that the DOL waive any application requirements and/or other criteria.

On September 10, the DOL issued a revised final rule and narrowed the definition to include only:

employees who meet the definition of health-care provider under the FMLA, i.e., physicians and others who make medical diagnoses; and
employees who are employed to provide diagnostic, preventive, or treatment services, or to provide “other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care”—such as bathing, dressing, hand feeding, taking vital signs, setting up medical equipment, and transporting patients and samples.

The revised final rule offers examples of types of employees who fall into this latter category. It includes nurses, nurse assistants, medical technicians, and any others who directly provide diagnostic, preventive, treatment, or integrated and necessary services. Also included are those who provide such services under the supervision of (or in assistance to) FMLA-defined health care providers, or nurses, nurse assistants, medical technicians, and other direct-providers.

Finally, this category includes those who may not interact with patients or report to providers, but whose services are integrated with and necessary to the provision of patient care. For example, a lab technician who processes test results (perhaps for COVID-19 testing) needed for diagnoses or treatment meets this definition. By contrast, IT professionals, maintenance staff, human resources, food service workers, records managers, consultants, and billers, do not.

Employers should continue to consider exclusions from FFCRA-paid leave on a case-by-case basis, now using the revised Final Rule’s framework.

To learn more about the expansion of FMLA benefits, visit APMA’s COVID-19 FMLA resource page at www.apma.org/COVID19FMLA.