Client Alert: Updated Rule Narrows Definition of Health Care Provider Exempt from FFCRA Leave

Posted on Sep 21, 2020 by

Under the Families First Coronavirus Response Act (“FFCRA”) passed in March, private employers of fewer than 500 employees are generally required to allow employees up to 12 weeks of partially paid leave if needed to care for their minor children whose school or place of care is closed or unavailable due to the pandemic and up to 80 hours of paid sick leave needed due to a diagnosis of COVID-19 or related need to quarantine / isolate, or due to the need to care for a child or someone subject to a quarantine / isolation order.

However, to ensure the continued availability of health care during this crisis, the law allowed for health care providers and emergency responders to be excluded from the definition of “employee” under these provisions. Unfortunately, the term “health care provider” was initially not clearly defined. Later, the Department of Labor (“DOL”) issued an expansive definition of “health care provider” that allowed health care provider employers to essentially opt-out of offering FFCRA to their employees completely. That expansive definition was challenged in federal court, where, in August, the court ruled that the definition was too broad.

New Rules
In response to that ruling, the DOL released new rules this week providing an updated definition of “health care provider,” giving some clarity on who can and cannot be considered exempt from the benefits afforded by the FFCRA. Though the new rule does provide needed clarification, there remains plenty of gray area.

Under the revised rule, the term “health care provider” includes:

  • Employees who are physicians and other health care providers who are otherwise qualified to make medical diagnoses;
  • Nurses, nurse assistants, medical technicians, and any other persons who directly provide services to patients;
  • Employees providing health care services under the supervision, order, or direction of, or providing direct assistance to, a physician, nurse, or other person qualified to provide direct patient care; and
  • Employees who are employed to provide health care services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

A license, certification, or registration is not required for an employee to be a “health care provider” under the revised definition.

To further illustrate what types of health care services would be considered “integrated with and necessary to the provision of patient care,” under the last bullet point above, the rule gives the example of a lab technician whose services are an integrated and necessary part of diagnosing a patient to determine the proper course of treatment. It also lists services such as bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples. The rule clarifies that direct patient care is not required for a health care service to be considered “integrated with and necessary to the provision of patient care.”

The rule further lists examples of those whose services would not be considered “integrated with and necessary to the provision of patient care,” including IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.

In short, the definition focuses on the role and duties of the employee, not the nature of the employer’s business.

We’re Here to Help
If you have questions regarding the FFRCA, the new definition of “health care provider,” or any other employment matter arising in connection with the COVID-19 pandemic, please reach out to us. We’re here to help!

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Lora L. Zimmer

Health Law and Title IX Attorney at McCarty Law LLP
Lora focuses her practice in corporate and business transactions, with a particular focus on the business and regulatory needs of health care clients. In addition, Lora is a trained Title IX investigator, providing prompt, thorough investigations and objective reporting in response to alleged violations of schools’ sexual misconduct policies.