Definition of “Health Care Provider”: The FFCRA defines a health care provider as “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.” The “Final Rule” states that employers may elect to exclude “health care providers” from leave benefits and defines a healthcare provider as: “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions, as well as any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.” The court found that the “Final Rule” definition was too expansive and made clear only the FFCRA definition remains valid. This significantly limits the definition of health care provider.
The Work Availability Requirement: This grants paid leave to employees who are “unable to work (or telework) due to a need for leave to care for… [a child] due to a public health emergency.” The “Final Rule” excludes from these benefits employees whose employers “do not have work” for them such as those who due to the economic downturn have seen a decrease in their business. The court states that the “Final Rule” provision regarding the work availability requirement should be struck and only the original statutory requirements remain. An example the court provides is that if a teacher is on paternity leave and there is a snow day the fact that they would not be working on the snow day does not affect their leave. In other words, a snow day still entitles the teacher to leave! Thus, having less work for employees to do does not affect those who are taking leave due to the provisions of the FFCRA.
Intermittent Leave: The “Final Rule” permits “employees to take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree, and, even then, only for a subset of the qualifying conditions.” The court upheld the portion of the rule stating it is only for a subset of qualifying conditions but struck the part of the rule requiring employer permission.
Intermittent Leave: The court also clarified that “an employee taking leave for an intermittent-leave-restricted reason must take his or her leave consecutively until his or her need for leave abates. But once the need for leave abates, the employee retains any remaining paid leave, and may resume leave if and when another qualifying condition arises.”
Finally, the court stated that the “Final Rule” is severable thus the provisions listed above can be struck out while the rest of the rule remains intact. The provisions of the “Final Rule” that were struck out are the work-availability requirement, the definition of “health care provider,” and the temporal aspect of the documentation requirements with the intermittent leave requirement being partially struck out in regards to employer consent.