Coronavirus update for 9.14.2020 – Full Congress Back At It and Revised Info on FFCRA

Chamber Members:

Today begins a new week. The House is back in session as we still hold out hope that some type of an agreement can be reached for a federal aid package. Also, new clarifications were released at the end of last week on Family First Coronavirus Response Act. See below for further details.

*Daily Coronavirus update brought to you by Silver Cross Hospital

DOL’s Latest Revisions Clarify Employer Responsibilities Under FFCRA
The U.S. Department of Labor (DOL) issued revised FFCRA regulations that clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, specifically the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

The primary impetus for the revisions to the FFCRA regulations was to provide clarity following the August 3, 2020, decision of the U.S. District Court for the Southern District of New York, which invalidated four different portions of the FFCRA regulations.

The revised FFCRA regulations, which take effect September 16, 2020, do the following:

Reaffirm the requirement that employees are prohibited from taking FFCRA leave if the employee’s employer would not have had work for the employer to perform, even if the employee qualifies for paid leave under FFCRA.

The DOL affirmed that for an employee to be eligible for paid leave under the EPSL and/or EFMLEA, the employer must actually have work available for the employee to perform at the time leave is requested.
Thus, if there is no work available for the employee to perform due to circumstances other than a qualifying reason for leave (DOL uses as an example, “perhaps the employer closed the worksite temporarily or permanently”), the FFCRA qualifying reason could not be, and is not, the reasons for the employee’s inability to work.
The DOL clarified that the “work availability” requirement applies to all six qualifying reasons under the EPSL, and the EFMLEA.

Reaffirm the requirement that an employee must have employer approval to take FFCRA leave intermittently.

Notably, as it relates to the school leave issues employers have been facing, the DOL explained that “The employer approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid attendance) basis because such leave would not be intermittent leave.”
The DOL used the example of a parent who needs to take leave due to his/her child’s school being closed on Monday, Wednesday, Friday of one week, and Tuesday and Thursday of the following week. According to the DOL, “For purposes of FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day,” thus it is not intermittent leave. Therefore, the if the employee is eligible for paid leave under the EPSL and/or EFMLEA, it should be granted.
The DOL distinguished the above from when a child’s school is closed for some extended period (e.g. 2 months), and the employee wishes to take leave only on certain days. This would constitute intermittent leave, according to the DOL, and require employer consent, even if the employee is eligible.

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.

The DOL adopted FMLA’s definition of a “health care provider” (e.g. physicians and others who make medical diagnoses).
The DOL now defines “health care provider” to also be an individual who is “capable of providing healthcare services.” Specifically, a “health care provider,” according to the DOL, must be “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 that if not provided would adversely impact patient care.” DOL explained that for purposes of this definition, it encompasses relevant services, “even if not performed by individuals with a license, registration, or certification.”
The DOL determined that an employee is “capable” of providing health care services “if he or she is employed to provide those services . . . the fact that the employee is paid to perform the services in question is, in this context, conclusive of the employee’s capability.”
The DOL identified three categories of employees who may qualify as health care providers:
1. Nurses, nurse technicians, medical technicians, and other provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care;
2. Employees who provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision of a doctor, or nurses, nurse technicians, or medical technicians.
3. Employees who may not directly interact with patients, and/or who may not report to another health care provider or directly assist another healthcare provider, but “nonetheless provide services that are integrated with and necessary components to the provision of health care.” For example, a lab technician who processes test results.
The DOL explained that individuals who provide services that affect, but are not integrated into the provision of patient care are not covered under the definition of “health care provider,” e.g., IT professionals; building maintenance staff; human resources personnel; cooks, food service workers, records; managers; consultants; and billers.

Clarify that employees must provide the required documentation (e.g. name, date(s) for leave, qualifying reason for leave, oral statement that employee is unable to work or telework, and any other supporting documentation (e.g. quarantine or isolation order, doctor’s note advising employee to self-quarantine, school or place of care closure letter, etc.)) supporting their need for EPSL and/or EFMLEA leave to their employers “as soon as practicable.”

The DOL stated that the requirement under the soon-to-be former regulations that an employee must provide the required documentation “prior to” taking paid leave is being removed.
Under the revised regulations, employees requesting paid leave under the EPSL and/or EFMLEA must provide their employers with the required documentation, “as soon as practicable,” which according to the DOL, in most cases will be when the employee provides notice to his/her employer of the need for leave.

Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Regulations will now state that when the need for the leave under the EFMLEA is “foreseeable,” advanced notice is to be provided to the employer “as soon as practicable.”
The DOL uses the example of a parent learning on Monday that his or her child’s school will be closed on Tuesday for a COVID-19 related reason. Under this scenario, the DOL instructs that the “employee must notify his or her employer as soon as practicable [likely Monday at work].”
Alternatively, when need for leave under the EFMLEA is not foreseeable, for example, a parent learns that his or her child’s school will be closed Tuesday, after already reporting to work on Tuesday, “the employee may begin to take leave without giving prior notice, but must still give notice as soon as practicable” (i.e. that same day).

GOP to Pressure Pelosi
Senate Republicans see putting pressure on Speaker Nancy Pelosi (D-Calif.) as the key to getting a deal on a coronavirus relief bill before the elections and are counting on vulnerable House Democrats to move the Speaker off her demand for a package costing more than $2 trillion.

GOP lawmakers say last week’s procedural vote to advance a $500 billion to $700 billion relief plan, which all but one Republican senator supported and all Democrats opposed, was designed to give political cover to their vulnerable incumbents and put House Democrats on the defensive. The question is – does this force Pelosi to listen to 20 members in districts where the U.S. Chamber of Commerce has endorsed the Democrat.

The U.S. Chamber of Commerce circulated a memo earlier this month stating its intention to endorse 23 first-term House Democrats. “Schumer’s not pressured at all. This is all on Pelosi. Pelosi’s running the show,” remarked a source from the Senate, noting that 117 House Democrats signed a letter to Pelosi last month asking her to take up the Worker Relief and Security Act.

The bill would extend $600-a-week federal unemployment assistance for the duration of the coronavirus pandemic and adjust the weekly federal unemployment compensation amount and available benefit weeks on state unemployment rates.

Pelosi on Friday afternoon said she remains optimistic about getting a deal, despite growing skepticism among other lawmakers. “I’m completely optimistic,” she insisted in an interview with CNN’s Wolf Blitzer. “I’m optimistic. I do think we should have an agreement, that’s what we all want.” But she reiterated she would oppose one of President Trump’s top priorities, $1,200 rebate checks to Americans earning up to $75,000, unless food assistance and eviction protection are part of the deal.

Another COVID Side Effect: A Construction Labor Gut
It’s an about-face for a construction sector that was riding a historic boom into 2020 and so inundated with projects that quality workers were hard to find. Unfortunately, a coronavirus-induced recession crushed or significantly delayed plans for many new buildings, setting off waves of layoffs among contractors and bringing local construction employment to its lowest mark in more than five years, according to data from Moody’s Analytics.

Yet the worst may be ahead. An index of billings tracked by the American Institute of Architects—normally an indicator of what new commercial construction starts will look like a year out—fell to its lowest level ever in April and as of July was still hovering below where it was in early 2009 during the Great Recession. A July AIA survey also showed that 45 percent of respondents expected to lay off, furlough or reduce worker hours when their Paycheck Protection Program loan periods end.

Finally, the Joliet Chamber is excited to announce its first hybrid event THIS WEDNESDAY with the 2020 ATHENA Award Program! Due to state guidelines, a small banquet will be held at the Jacob Henry Mansion Estate and be LIVE STREAMED so all chamber members are welcome to “attend” as we honor Mary Jaworski as the 2020 ATHENA recipient and celebrate her retirement from the Chamber after 27 years of service.

Stay well,

Joliet Region Chamber of Commerce & Industry Staff and Board of Directors

Mike Paone
Vice President – Government Affairs
Joliet Region Chamber of Commerce & Industry
mpaone@jolietchamber.com
815.727.5371 main
815.727.5373 direct