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New law prohibits California employers from using health care provider exemption under FFCRA

Revised FFCRA regulations clarify questions around leave availability, approval

September 17, 2020 5363

Quick Summary:

A new law seeks to fill the gap left by the Families First Coronavirus Response Act by prohibiting California employers from using the health care provider exemption and requiring them to provide paid sick leave to eligible employees.

Gov. Gavin Newsom on Sept. 9 signed legislation that overrides the Families First Coronavirus Response Act’s health care provider exclusion. Assembly Bill 1867 (Reyes, D-San Bernardino) legally requires all California employers to provide emergency paid sick leave to qualified employees under the act.

The FFCRA still permits a small-business exemption for eligible businesses with fewer than 50 employees. Practice owners who have previously excluded themselves from providing paid leave under the FFCRA health care provider exemption are encouraged to seek legal counsel to find out if they could owe retroactive pay to employees.

New notice and wage statement requirements

AB 1867 requires that employers display a new workplace notice in the practice in a location where it will be clear and visible to employees. Practice owners are also encouraged to email the notice to remote employees. 

Employers must update their wage statements to provide notice of the amount of paid sick leave available under FFCRA beginning the next pay period following the bill’s Sept. 9 enactment. Practice owners who fail to do so could be subject to liability. The notice can be provided either on a wage statement or in a separate writing.

DOL revises FFCRA paid sick leave regulations

Revised regulations for the Families First Coronavirus Response Act’s paid sick leave and paid family leave provisions clarify when the leave is available to employees and when they must seek approval from their employer before using the leave.

The changes, which took effect Sept. 16 and apply to employers nationwide, come after a ruling from the U.S. District Court for the Southern District of New York that found portions of the DOL’s April 1 temporary rule invalid.

The revisions do the following:

  • Reaffirm that employees may take FFCRA leave only when work is actually available to them.
  • Reaffirm that employees must have their employer's approval to take intermittent FFCRA leave.
  • Revise the definition of "health care provider" to include "only employees who meet the definition of that term under the Family and Medical Leave Act 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."
  • Clarify that employees must provide employers with documentation as soon as possible supporting their need for FFCRA leave.

The DOL’s revised definition of “health care provider” does not apply to California employers who are still required to provide paid sick leave to qualified employees under AB 1867.

CDA’s Employer Guide to FFCRA helps employers manage their requirements related to FFCRA employee eligibility rate of pay and more.