Following the U.S. Department of Labor's (DOL) recent revisions to FFCRA regulations, many employers may need to adjust their documentation and intermittent leave policies. There are three specific areas in which employers may need to address: (1) documentation; (2) intermittent leave; and (3) the health-care-provider exemption.
In regard to documentation, the actual requirements for FFCRA leave haven't changed; however, the timing of when the documentation must be provided has been revised. Under the revised rule, the employee must provide documentation “as soon as practicable.”
For intermittent leave, the DOL's revised regulations provide reasoning for its requirement that employees have their employer's approval to take intermittent leave. Additionally, it is suggested that employers assess requests for intermittent FFCRA leave on a case-by-case basis and make certain revisions to FFCRA consent forms.
Lastly, the DOL issued revised rules about the health-care-provider exemption by clarifying who is considered to be a health care worker. Now, health care workers include those classified as health care providers under the FMLA and individuals employed to provide diagnostic services, preventive services, treatment services, or other services integrated with and necessary to patient care.
CDC Close Contact
The CDC updated its definition of “close contact” for those who come into proximity of someone testing positive for COVID-19. Under previous guidance, the CDC defined a close contact as someone who spent at least 15 consecutive minutes within six feet of an infected person. Now, the CDC defines a close contact as someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.
By default, schools involve the interaction of high numbers of students and staff; some districts already use the newer definition, in addition to large employers. When determining whether an individual has been exposed to an infected person for 15 minutes or more, all employers need to look at brief interactions
between individuals that may occur several times a day, instead of one or two prolonged exposures. Infected employees should identify others who worked within six feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms. The CDC advises most employers send home any
employees who have had a risk of exposure under this analysis. Those employees should maintain social distancing and self-monitor for 14 days from the exposure.
As a result of the new definition of close contact, employers should review their COVID-19-related plans with this new definition in mind and, at a minimum, update their contact-tracing questionnaires.
In an effort of continued support, White & Story will continue monitoring any FFCRA and COVID-19 related legal discussion and is available to assist our clients in developing updated policies and procedures.
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