On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced revisions to regulations that implement the paid sick leave and expanded family and medical leave provisions under the Families First Coronavirus Response Act (FFCRA).

Healthcare providers should take note that the revised rules will significantly narrow the “health care provider” exclusion from FFCRA eligibility and goes into effect September 16, 2020. As a result, health care employers who are subject to the FFCRA, either because they have fewer than 500 employees or because they are public-sector employers, will no longer be able to rely on a blanket exclusion of all employees from FFCRA eligibility.

“Health care provider” exclusion is narrowed

The original FFCRA regulations had a very broad definition of “health care provider” that included, not only individuals who provided actual care to patients, but also those who worked in support roles, arguably including IT staff, administration, Human Resources, custodians and food services workers.

A recent court decision said that the DOL’s definition of “health care provider” was overbroad and invalid. The revised regulations provide a narrower definition of “health care providers” who can be ineligible for FFCRA leave. The first category of individuals who can be excluded are those considered to be a “health care provider” under the FMLA regulations. This would include physicians, some chiropractors, osteopaths, and nurse practitioners. The FFCRA exclusion will also apply to employees who are “employed to provide” diagnostic, preventive, or treatment services, “or other services that are integrated with and necessary to the provision of patient care.” This would include nurses, nursing assistants and laboratory and medical technicians (viewed on a case-by-case basis), and similar categories of employees.

“Integrated” services include bathing, dressing, feeding, and other tasks related to patient care.

The newly revised regulations specifically exclude employees whose work is administrative, related to food services and building maintenance staff.

The full list of revisions can be found here:

https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act

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Department of Labor Significantly Narrows Definition Of “Healthcare Provider” Under The Families First Coronavirus Response Act (FFCRA)

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