COVID-19 Hospice How-To Series: Application Of The FFCRA “Health Care Provider” Exemption To Hospices

Husch Blackwell LLP

The Families First Coronavirus Response Act (“FFCRA”) goes into effect today, April 1, 2020, and applies to leave taken between April 1, 2020 and December 31, 2020. The FFCRA expands certain medical leave rights previously established by the Family and Medical Leave Act (“E-FMLA”) to provide up to twelve (12) weeks of paid, job-protected leave for employees with school closure or childcare coverage issues related to the current coronavirus pandemic. The FFCRA also provides for two (2) weeks of paid sick leave under the Emergency Paid Sick Leave Act (“E-PSLA”) for certain COVID-19-related reasons (the E-FMLA and E-PSLA are collectively referred to as “Expanded Leave”).[1] However, employers who employ “health care providers” may, but are not required to, exempt these individuals from Expanded Leave. Most, if not all, of a hospice’s employees will fall within the broad definition of “health care provider.” Therefore, hospices will need to evaluate who of its employees it will exempt or not, being certain to treat similarly situated employees equally and to consider the potential impact to its workforce.

What Is Expanded Leave? The FFCRA’s Expanded Leave provides employees of a public employer or private employer with fewer than 500 employees, who have been on the job for at least 30 days (except for E-PSLA leave, which is available immediately), the right to take up to 12 weeks of job-protected leave for a Public Health Emergency. The amount the employee is paid during the Expanded Leave depends on the type of leave, as well as the reason for the leave and ranges from 100% of their regular rate of pay to 2/3 of their regular rate of pay. For more on the reasons Expanded Leave is available and the applicable rate of pay, please see Question #7 of the Department of Labor’s (“DOL”) FFCRA Questions and Answers, available here.

Who Can Be Exempted from Expanded Leave? If an employee is considered a “health care provider,” and their employer chooses to exempt the employee from eligibility under the FFCRA, the employee will not be entitled to Expanded Leave. For exempted employees, leave for COVID-19-related reasons would be unpaid under traditional FMLA, unless the employee elects to use other benefits already provided by its employer (e.g., PTO/vacation).

A “health care provider” is defined broadly as “anyone employed at any doctor’s office, hospital, health care center, clinic, . . . nursing facility, retirement facility, nursing home, home health care provider, . . . or any similar institution, employer, or entity.” (See Question #56 of the DOL’s FFCRA Questions and Answers, available here) (emphasis added). A hospice is a “similar institution” to a home health care provider, and therefore its employees would fall within this broad definition, and in turn, gives hospices the option to exempt its employees from the Expanded Leave.

What Does a Hospice Need to Do? Hospices should consider taking the following action:

  1. Confirm the hospice is an employer to whom the FFCRA applies. If unsure, the hospice should consult a labor and employment attorney.
  2. Decide if the hospice will exempt its employees who meet the definition of “health care provider” from Expanded Leave. Whether to exempt these employees from Expanded Leave is up to the discretion of each hospice and, ultimately, a business decision. Either way, hospices are encouraged to develop and implement a policy that is uniformly applied, clearly demonstrating the hospice’s position on the FFCRA’s Expanded Leave, and whether and to whom the “health care provider” exemption applies.

[1] Please note, the Department of Labor released formal regulations related to Expanded Leave this afternoon and may provide additional guidance for hospices. We will update this post based on those regulations, as needed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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