DOL Releases Re-Revised Regulations on Health Care Providers Exempted from FFCRA Leave

NOTE:  The information contained in this document does not, and is not intended to, contain or constitute legal advice and is being provided for general informational purposes only.  All readers are encouraged to consult their personal counsel for specific advice and interpretations before taking action.  

Background

On Friday, September 11^th, the US Department of Labor issued new regulations interpreting the Families First Coronavirus Response Act (FFCRA).  You will recall that the FFCRA—the first piece of federal legislation related to the COVID-19 public health emergency—was passed on April 1^st, 2020.  The federal law, among other things, established a new paid medical leave requirement for certain individuals as well as expanded FMLA provisions.  More specifically, the law’s:  

• Expanded family and medical leave provisions established up to 12 weeks of job-protected FMLA leave paid at 2/3 of the higher of their regular rate of pay or the applicable state or Federal minimum wage when an eligible employee is unable to work due to the closure of their minor child’s school, nursery or daycare center.  
• Emergency paid sick leave (EPSL) provisions established up to 10 days (80 hours) of paid sick leave at an eligible employee’s regular rate of pay (up to $511 daily and $5,110 total) for any one of the following qualifying COVID-19-related reasons:  
• Emergency paid sick leave (EPSL) provisions established up to 10 days (80 hours) of paid sick leave at an eligible employee’s regular rate of pay (up to $200 daily and $2,000 total) for any one of the following qualifying COVID-19-related reasons:  

After the FFCRA was signed into law in early April, the US Department of Labor (DOL) was tasked with implementing regulations implementing the statute, namely defining “health care providers.”  Following NAHC’s lead, TAHC sent a letter to the Department of Labor urging that agency to include all individuals providing home health, hospice and home care services in its definition of “health care providers.” 

Soon after, the DOL issued additional guidance specifying the following: 

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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 includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

The National Association for Home Care and Hospice (NAHC) reported that the DOL’s interpretation probably, but not definitively, included most home care providers. 

"...the reference to “any similar institution, employer, or entity” combined with longstanding DOL classification of individuals providing personal care service in the home as health care workers results in the conclusion that home health agencies, personal care services companies, private duty nursing employers, and hospices are all within DOL’s exemption of a “home health care provider.” 

For example, the Department of Labor has long maintained within a health care worker category 31-1011 Home Health Aides:

Provide routine individualized healthcare such as changing bandages and dressing wounds, and applying topical medications to the elderly, convalescents, or persons with disabilities at the patient's home or in a care facility. Monitor or report changes in health status. May also provide personal care such as bathing, dressing, and grooming of patient.

Further support is found in the reference to a “retirement facility” distinct from a “nursing facility.” At most, a retirement facility provides personal care.

Finally, note also that the exemption goes beyond direct service employees and “includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.”

The state of New York challenged several provisions in the rule, including the DOL’s definition of “health care provider.”  Specifically, NY took issue with the DOL’s focus on health care employers rather than individual employees’ responsibilities.  Ultimately, the federal district court in New York agreed with the state and vacated the definition of “health care provider.”  The revised rules that were released on Friday, September 11^th were issued in response to the district court’s ruling.

How long will the FFCRA be in effect?

The FFCRA is set to “sunset” or expire on December 31, 2020.  It could be extended, but we don’t really expect that it will be.

Does the FFCRA apply to me? 

The FFCRA generally applies to private employees with fewer than 500 employees (as well as certain public employers).  Almost everyone you employ (i.e., even employees on leave and temporary employees) counts as an employee except independent contractors.

Additionally, there is a small business exception that says employers with fewer than 50 employees don’t have to provide FFCRA leave if doing so would jeopardize their sustainability.  In order to properly utilize the small business exception, the employer must be able to demonstrate one of the following:

1. The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

1. The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

1. There are no sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Do all of my employees qualify for FFCRA leave?

No, there are exceptions for each type of leave:

• For EPSL, all employees are eligible for the leave except health care providers or emergency responders.
• For Expanded FMLA leave, all employees that have been employed by the employer for at least 30 calendar days are eligible for leave unless they are health care providers or emergency responders.

What is the definition of health care provider?

The current definition of health care provider is:

Employees who are health care providers under 29 CFR 825.102 and 825.125,3 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.  See section 3 of DOL’s revised guidelines.

According to 29 CFR 825.102(2), a “healthcare provider” means:

(i) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the  State  and performing within the scope of their practice as defined under State  law;

(ii) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State  law and who are performing within the scope of their practice as defined under State  law;

(iii) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee  or family member is receiving treatment from a Christian Science practitioner, an employee  may not object to any requirement from an employer  that the employee  or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider  other than a Christian Science practitioner except as otherwise provided under applicable State  or local law or collective bargaining agreement.

(iv) Any 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; and

(v) A health care provider  listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

(3) The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions.

Littler Law (a leading labor and employment law firm) is reporting that the following types of employees have been specifically identified as properly excludable from the FFCRA paid leave:

1. Nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services;
2. Employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
3. Employees who are "otherwise integrated into and necessary to the provision of health care services," such as laboratory technicians who process test results necessary to diagnoses and treatment.

Before the DOL issued the revised regulation above, the applicable definition was that of the original FMLA language.  Because the federal court in NY invalidated the DOL’s original definition of “health care provider” which was provided in their first set of regulations implementing the FFCRA, the law treats such invalidation as if the regulation had never occurred, which means that from April 1^st through September 16^th, the applicable definition would have been the definition from 29 CFR 825.102(2) set out above.   

Which services fit the definition of diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care?

According to the DOL’s revised guidelines:

Diagnostic services include, for example, taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results. These services are integrated and necessary because without their provision, patient diagnosis would be undermined and individuals would not get the needed care. To illustrate, a technician or nurse who physically performs an x-ray is providing a diagnostic service and therefore is a health care provider.

Preventive services include, for example, screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems. As with diagnostic services, preventative services are integrated and necessary because they are an essential component of health care. For example, a nurse providing counseling on diabetes prevention or on managing stress would be providing preventative services and therefore would be a health care provider.

Treatment services include, for example, performing surgery or other invasive or physical interventions, administering or providing prescribed medication, and providing or assisting in breathing treatments.

Services which are integrated with and necessary to the provision of patient care, include, for example, bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples. These tasks must be integrated and necessary to the provision of patient care, which significantly limits this category.

What if I denied an employee FFCRA leave because I was relying on the DOL’s first set of regulations which defined “health care providers” more expansively than the FMLA?

Agencies that can prove they were acting upon legal advice and/or guidance in excluding certain workers as health care providers may have some protection.  You should consult with your attorney to determine your options.

What else should I know?

The Department of Labor’s Wage and Hour Division has released a poster that many legal experts are recommending employers should post now.  You can access the poster here .

Can I choose to provide the leave even if an impacted employee is a health care provider?

Yes.  And in some situations, it may be advisable that you do.  Please consult your personal attorney for agency-specific guidance.

What else do the new rules say?

• The rules reaffirm that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave.
• The rules confirm that intermittent leave can only be taken with employer approval.
• The rules clarify a timeline for when an employee must provide notice of the need for leave and supporting documentation.