September 20, 2020

Volume X, Number 264

September 18, 2020

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DOL Strikes Back: Redefines Health Care Provider Exception to FFCRA

Last month a New York federal court left health care providers in a lurch, when it vacated the Department of Labor’s definition of who could be exempted as a health care provider from the FFCRA leave obligations. Thankfully, the DOL has stepped back in to provide further clarity on this issue, providing revisions and clarifications to its FFCRA Temporary Rule. For more information about the revisions, click here.

The FFCRA which requires certain employers to provide paid sick leave and expanded FMLA to its employees provides an exception for health care providers. Under the revised rule, the DOL explains that the health care providers that an employer can elect not to cover under the FFCRA include:

  1. Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;

  2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State and performing within the scope of their practice as defined under State law;

  3. 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;

  4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;

  5. Any other employee who is capable of providing health care services, meaning he or she is employed to provide:

    • diagnostic services (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);

    • preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);

    • treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments);

    • or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).

The revised rule further explains that the types of employees falling under this last category include only:

A.  Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in 5 above;

B.  Employees providing services described in 5 above under the supervision, order, or direction of, or providing direct   assistance to, a person described in numbers 1-4 above or A above; and

C.  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.

The DOL further clarified that employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

The revised Rule recognizes that individuals who fall under this health care provider exemption may work, among other places, at a doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided. But the DOL explained that an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider.

The DOL’s revised Rule provides welcome relief and clarity to employers. Although it is not immune to further legal challenge, the DOL appears to have addressed the issues raised by the New York court. Employers are nonetheless wise to seek legal counsel with respect to how the various FFCRA requirements might apply in an individual circumstance.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 257

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About this Author

Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

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