On September 11, 2020, the United States Department of Labor (“DOL”) revised a definition of who is a “health care provider” for purposes of excluding those employees, i.e., not providing federal paid sick leave, from the Families First Coronavirus Response Act (“FFCRA”). The Revised Final Rule significantly narrows the prior definition, and employers in the health care industry should review and revisit their policies regarding eligible coverage (or exemption) under the FFCRA. That revised Rule took effect on September 16, 2020.
The FFCRA is a federal law that requires certain employers to provide employees with paid leave for certain COVID-19 related reasons. The FFCRA, however, allows employers to exclude “health care providers” from the paid leave requirement. The DOL had previously defined the term “health care provider” broadly 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.”
On September 11, 2020, the DOL revised its definition of “health care provider” to narrow its scope. The Revised Final Rule makes it clear that it is “not enough” that an employee merely works for an employer that provides health care services. Instead, the exemption will now only apply to and allow for exclusion of employees who would fall under the Family Medical Leave Act (“FMLA”)’s definition of “health care provider” or who are employed to provide diagnostic 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.” Under the FMLA, a “health care provider” includes physicians and physicians’ assistants, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, and Christian Science practitioners. The DOL indicates that the revised definition may also include: (i) nurses, nurse assistants, and medical technicians; (ii) employees providing services under the supervision, order, or direction of, or providing direct assistance to, specifically identified health care providers; and (iii) employees that provide services that are “integrated with and necessary components to the provision of care,” such as laboratory and radiology technicians.
Examples of employee positions that would not be covered by the health care provider exception include: information technology professionals, building maintenance staff, HR personnel, cooks and food service workers, record managers, consultants, and billers as employees that should not be exempted from coverage under the FFCRA.
To minimize the spread of COVID-19, DOL encourages employers to be judicious when using this exemption. For example, an employer may decide to exempt these employees from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.
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