The U.S. Department of Labor (DOL) recently clarified which healthcare providers are exempt from the Families First Coronavirus Response Act’s (FFCRA) paid sick and family and medical leave policies.
How We Got Here
When the FFCRA was first enacted, the DOL indicated healthcare providers’ employees were exempt from the emergency paid sick leave and expanded family and medical leave requirements. The distinction was particularly important for many public entities such as county-run hospitals because IRS regulations could affect their ability to participate in the FFCRA programs.
Following litigation in New York, the DOL issued a clarification of its rules defining who is an excluded healthcare provider under the FFCRA. The agency now indicates the providers fall into two groups:
- Any person licensed to issue a Family and Medical Leave Act (FMLA) certification—normally a physician or mid-level provider as well as other providers who could fill out the certification, such as a chiropractor; or
- Those who provide services “integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”
The latter group includes anyone who provides direct patient care or participates in the process including employees who may not even see patients, such as laboratory technicians.
The new definition specifically excludes IT professionals, building maintenance staff, HR personnel, cooks, food service workers, records managers, consultants, and billers. In other words, those employee groups and workers in similar positions would be covered under the FFCRA. They would qualify for both emergency sick leave and emergency family and medical leave benefits, e.g., for school and daycare closures.
The clarification is a significant and dramatic change from previous DOL guidance requiring an immediate assessment by the healthcare employers.
In addition to technical compliance with the rule, healthcare employers need to think carefully about how providing benefits to one group of employees might affect internal public relations when other workers don’t feel they’re receiving the same advantages.
The DOL’s clarification isn’t retroactive—it’s only active going forward. Healthcare employers, particularly those in the public sphere, should seek the advice of legal counsel about how the various regulations now interact.