DOL Amends Definition of Health Care Provider Under the Families First Coronavirus Response Act
As was discussed in previous Koley Jessen News Flashes, the Families First Coronavirus Response Act (the “FFCRA”) contains an elective exemption from the Paid Sick Leave and Emergency FMLA Leave for employers of health care providers. Specifically, the FFCRA provides that “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” Previously, the U.S. Department of Labor (“DOL”) had published regulations defining “health care provider” for purposes of the FFCRA as the following:
“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, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
This definition was exceptionally broad, and had the effect of allowing employers of health care providers to elect to exempt some or all of their employees, including those who were not licensed healthcare providers.
On September 15, 2020, the DOL posted revisions to its regulations in light of the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the DOL’s regulations invalid. Among other things, these revisions significantly change the definition of healthcare provider under the FFCRA. The revisions amend the definition of healthcare provider to now include:
“only employees who meet the definition of [healthcare provider] 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.”
This revised definition is broken down further in Question #56 of the DOL’s Questions and Answers, found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#56.
In general, the revised definition should be broken down into groups as follows:
1. The first group is any doctor of medicine or osteopathy, podiatrist, dentist, clinical psychologist or social worker, optometrist, chiropractor, nurse practitioner, nurse-midwife, or physician assistant, or any other health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits for purposes of the Family Medical Leave Act.
2. The second group is any other person who is 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, if not provided, would adversely impact patient care; such as nurses, nurse assistants, and medical technicians.
3. A third group includes any employee (licensed or unlicensed) who directly assists or are supervised by a direct provider (in groups 1 and 2) of diagnostic, preventive, treatment, or other patient care services, and those employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services, such as a laboratory technician.
Notably, according to the answer to Question #56, “a person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital of a similar health care facility.”
This revised definition of health care provider is effective immediately, and, accordingly, employers in the healthcare industry should bring their existing FFCRA practices into compliance with the new rule as soon as possible. This likely means that employers of healthcare providers who chose to exempt their employees from the FFCRA will need to roll back their exemption to ensure any such exemption includes only those employees expressly listed in the above, revised definition.
Koley Jessen continues to monitor the legal developments occurring alongside the progression of COVID-19. We encourage you to contact a member of the Health Law or Employment practice group with any questions regarding the foregoing.