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FFCRA "Health Care Provider" Definition Narrowed by DOL

Almost six months after the US Department of Labor (DOL) issued regulations under the Families First Coronavirus Response Act (FFCRA), those regulations have been revised (effective September 16, 2020) in response to a federal district court decision invalidating a handful of provisions interpreting the FFCRA. The DOL responded by revising some of the regulations in ways that reaffirm some of the DOL’s original positions. Other revisions amend certain regulations to reflect changes in the DOL’s thinking. A key change for the healthcare industry is the amended definition of “health care provider” in the context of allowing employers to exclude these employees from some or all of the requirements for paid leave under the FFCRA. (For information on the other revisions, refer to What’s New? Revised Paid Leave Regulations.)

The FFCRA, which applies to private employers with fewer than 500 employees and some public agencies, permits employers to exclude “health care providers” from some or all forms of leave that must be provided to other employees under the statute. The reasoning behind this was simple: it was an effort to prevent disruptions to the healthcare system’s capacity to respond to COVID-19. Originally, “health care provider” was very broadly defined and focused on the types of employers who could exercise the exemption rather than on the specific job functions of the employee. This meant that a healthcare provider was anyone employed at any doctor’s office, hospital, healthcare center, clinic, postsecondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity, regardless of whether the employee was a clinician, an administrator, a billing clerk, or a receptionist.

In the recent revisions, the DOL has narrowed the scope of this definition to focus on employees who actually provide healthcare services. The new definition includes doctors, nurses, and others who directly provide diagnostic, preventive, treatment, or other integrated services; employees providing services under the supervision, order, or direction of, or providing direct assistance to, a healthcare provider; and employees who are otherwise integrated into and necessary to the provision of healthcare services. This catchall includes employees such as lab technicians who process test results necessary to diagnoses and treatment. The regulations also include a non-exhaustive list of facilities where healthcare providers may generally work, but this is merely a guidepost and not dispositive.

Note that the FFCRA uses the term “health care provider” in two very different contexts. Where this term is used to refer to medical professionals who may advise an individual to self-isolate due to concerns related to COVID-19 such that the employee may take paid sick leave to follow that advice, the definition remains the classic Family and Medical Leave Act definition. However, in the context of entitlement to paid leave, the term is defined more broadly even after the recent revisions.

In light of this amended definition, where an employer provides healthcare services and may have previously excluded all its employees from being able to take paid leave under the FFCRA, that employer now needs to conduct an individualized assessment of whether the employee who requests leave is a “health care provider” under this second definition. Now, this means the employee must actually be directly involved in providing healthcare services. Employees such as building maintenance staff, human resources personnel, records managers, and billers are no longer considered “health care providers” even if they work for an employer who provides healthcare services.

The key takeaway here is that employers in the healthcare industry can no longer lump all their employees together and assume that they are excluded from the FFCRA’s leave entitlement. If an employee needs leave for an FFCRA-qualifying reason, the employer must now perform an analysis of whether that particular employee is a “health care provider.” Employers who need help performing this analysis or navigating these new regulations (or the FFCRA generally) should reach out to their employment counsel to avoid a potential headache down the road.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 268



About this Author

Mary Margaret Spell, Employment lawyer, Jones Walker

Maggie focuses her practice on cases brought under federal, state, and local employment laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. She regularly offers wage and hour compliance advice and has represented employers in numerous Fair Labor Standards Act collective actions and state-law wage and hour class actions.

Maggie’s litigation experience also includes defending employers in breach of contract and employment-related tort claims. She regularly defends employers and...

William W. Horton Corporate and Healthcare Industry Attorney Jones Walker

Bill Horton is a partner in the Corporate Practice Group and co-chairs the firm’s Healthcare Industry Team. He represents healthcare clients around the country on major transactions, compliance, and governance issues.

Bill maintains a national practice representing healthcare providers and other business enterprises in mergers, acquisitions, and joint ventures, securities and corporate finance law, regulatory compliance, and corporate governance matters. Prior to joining Jones Walker, Bill was a practice group leader at two other Birmingham-based law firms and served as general counsel of one of the nation’s largest publicly traded healthcare providers. He currently serves as head of the firm's Birmingham office.

Drawing on his substantial experience in private practice and as senior legal officer for a large public company, Bill has been involved in complex corporate finance and acquisition transactions in almost all sectors of the healthcare services industry. His background includes representation of issuers in securities offerings and periodic reporting, representation of borrowers in complex financing transactions, counseling healthcare providers on regulatory compliance, and representation of healthcare enterprises, financial services businesses, and other business clients in corporate governance matters, acquisition and divestiture transactions, joint ventures, venture investments, and other business transactions.

Bill has extensive experience in government and internal investigations. In addition, Bill is a certified mediator for the American Health Lawyers Association Dispute Resolution Service and regularly serves as a hearing officer for medical staff peer review hearings.

A nationally recognized speaker and author on healthcare, corporate and securities law, and professional responsibility topics, Bill also has held leadership positions for several years with the American Bar Association and the American Health Lawyers Association, serving in 2015 to 2016 as chair of the ABA Health Law Section. In 2016, he was honored by the AHLA Fraud and Abuse Practice Group with the Patricia Meador Leadership Award.  

In addition to his private practice, Bill serves as an adjunct professor at the University of Alabama School of Law and as a clinical associate professor at the School of Optometry at the University of Alabama at Birmingham. He also serves as a faculty panelist for George Washington University's Graduate Certificate in Healthcare Corporate Compliance Program, a position he has held since the program’s inception in 2005, and as Editor-in-Chief of two major healthcare law publications. He is the founding president of the National Board of Health Lawyers, a specialty certification organization.