Section 21.12 & Appendix I
September 2020

TO: Manual Recipients
FROM: Jessica Rowe, Director Staffing Services
SUBJECT: Clarification of Policy Bulletin 2020-01, entitled Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19


This policy bulletin provides updated information related to the implementation and interpretation of the Families First Coronavirus Response Act (FFCRA), which implicates leave under the Federal Emergency Paid Sick Leave Act (FEPSLA) and/or benefits provided by the Emergency Family and Medical Leave Act (EFMLA), all related to employees impacted by COVID-19.

The following are clarifications to the provisions of Policy Bulletin 2020-01 (April 2020).

Intermittent Use of FEPSLA and EFMLA

As of August 3, 2020, employees may intermittently use FEPSLA or EFMLA to care for the employee’s son or daughter whose school or place of care is closed, or the child care provider is unavailable, because of reasons related to COVID-19, which is detailed as FEPSLA Category 5 in Policy Bulletin 2020-01 (April 2020).

Employees may not use FEPSLA leave intermittently for any of the remaining reasons that are classified as FEPSLA Categories 1 through 4 and Category 6 in Policy Bulletin 2020-01 (April 2020). For these FEPSLA Categories, an employee must take leave consecutively until the need for such leave ends. The employee retains and may use any remaining FEPSLA leave time if and when another FEPSLA reason arises before its expiration on December 31, 2020. Intermittent leave may be used in increments of ¼ of an hour.


As set forth in Policy Bulletin 2020-01 (April 2020), FFCRA allows employers to exempt health care providers and emergency responders from FEPSLA and EFLMA. As of August 3, 2020, the definition for health care provider is found in the Family and Medical Leave Act (FMLA). The emergency responder definition is found in the U.S. DOL regulations implementing the FFCRA. Both definitions are provided below.

Agencies should continue to comply with FFCRA by applying and implementing, where applicable, the definitions of these exemptions to their workforce, and to take the necessary steps to ensure that the law is followed based on these definitions. Agencies need not consult or get prior approval before excluding employees under either of these exemptions, as was required by Policy Bulletin 2020-01 (April 2020). 


As of August 3, 2020, for the purposes of employees who may be excluded from FEPSLA or EFMLA leave under the FFCRA, the following definitions are to be applied. 

The term “health care provider,” as found at 29 C.F.R. § 825.102, means:

The phrase “authorized to practice in the State,” as used in this definition, means that the provider must be authorized by the State of New York to diagnose and treat physical or mental health conditions.

The term “emergency responder,” as found at 29 C.F.R. § 826.30(c)(2), means anyone necessary for the provision of transport, care, healthcare, comfort, and nutrition of such patients, or others needed for the response to COVID-19. This includes, but is not limited to, military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual whom the highest official of the State determines is an emergency responder necessary for the State's response to COVID-19.

Questions concerning the guidance set forth in this policy bulletin should be directed to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.