As discussed in previous alerts, the Families First Coronavirus Response Act (FFCRA) imposes new requirements on certain employers to provide paid leave for employees affected by the COVID-19 pandemic. The FFCRA generally applies to all private employers with fewer than 500 employees and, therefore, impacts many business in the healthcare industry.
The FFCRA typically requires covered employers to provide two weeks of paid emergency sick leave, and up to twelve weeks (ten paid) of emergency family and medical leave, to eligible employees for certain COVID-19-related reasons. However, both new leave provisions in the FFCRA provide that covered employers may exclude employees who qualify as “health care providers” from taking paid leave. The Department of Labor subsequently issued regulations clarifying who qualifies as a health care provider under the FFCRA and can therefore be exempted from the new requirements. An explanation of the “health care provider” exclusion is set forth below.
Which employees qualify as “health care providers” who may be excluded from paid leave under the FFCRA?
The FFCRA itself references the definition of “health care provider” included in the Family and Medical Leave Act (FMLA). The FMLA definition is fairly narrow and provides a limited list of individuals who are considered health care providers, including licensed doctors, nurse practitioners, and other medical professionals who are capable of certifying serious health conditions to support a claim under the FMLA. However, the DOL regulations state that this definition only applies when assessing whose advice an employee may rely upon to self-quarantine—not when assessing which employees may be exempted from the leave provisions.
The regulations provide a much broader definition of “health care provider” than under the FMLA for purposes of determining which employees can be excluded from taking paid leave altogether. The regulations state that, for purposes of applying the exclusion, a health care provider includes anyone employed at a:
- doctor’s office, hospital, pharmacy or healthcare center/clinic;
- medical school or other post-secondary educational institution offering health care instruction;
- local health department or agency;
- retirement facility or home, nursing facility or home, or home health care provider;
- laboratory or medical testing facility; or
- similar entities to those listed above where medical services are provided, whether temporary or permanent in nature.
In addition, the regulations provide that the term “health care provider” includes “not only medical professionals, but also other workers who are needed to keep hospitals and similar health care facilities well supplied and operational.” Accordingly, the definition of a “health care provider” under the FFCRA regulations includes any individual:
- employed by an entity that contracts with any of the above-listed facilities to provide services or maintain operations (but only if that individual’s job services support the operation of the facility);
- employed by an entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; or
- that the highest official of a state or territory determines is a health care provider necessary for that jurisdiction’s response to the COVID-19 pandemic.
What do these definitions mean for my business or organization?
If the business or organization is a hospital, doctor’s office, nursing home, local health department, lab facility, or any of the other entities included the first list above, all of its employees are considered “health care providers” who may be excluded from taking paid leave, according to the DOL’s regulations. This means every employee at those facilities, from actual doctors or nurses to maintenance and janitorial staff, counts as a “health care provider” under the DOL’s regulation and may be excluded from taking paid leave. Furthermore, employee of businesses that contract with these listed entities may also be excluded where their services support the operation of those facilities, as can employees of companies that provide medical services or products or are involved in making COVID-19-related medical items. The scope of excludable “health care providers” can be further expanded by proclamations from state governors.
While the regulatory definition of “health care provider” for purposes of determining what employees can be excluded from paid leave appears to go beyond what was provided in the FFCRA itself, the DOL has plainly taken an expansive view of who can be excluded. Companies operating in the health care industry should therefore take a close look at whether their employees fall within the broad scope of the DOL’s regulatory definition. If so, their obligation to provide paid leave could be greatly curtailed.
For specific applications of these new rules to your employees, please consult Hirschler's experienced employment and healthcare law counsel.
Luis F. Ruiz