When the Families First Coronavirus Response Act (FFCRA) was first enacted, the Department of Labor (DOL) indicated that employees of healthcare providers were exempt from the emergency paid sick leave and expanded Family and Medical Leave requirements. This distinction was particularly important for many public entities such as county-run hospitals because IRS regulations could affect a public entity’s 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 DOL now indicates that healthcare providers come in two groups:
- Any person who is licensed to issue a certification under the FMLA - this normally means a physician or mid-level provider as well as other providers who could complete an FMLA certification such as a chiropractor.
- Those who provide services, “that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This definition includes everyone who provides any direct patient care or participates in the direct patient care process including those employees who may not even see patients, such as laboratory technicians.
The new definition specifically excludes IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. This means that these employee groups and employees in similar positions would be covered under the FFCRA. They would qualify for both emergency sick leave and emergency Family and Medical Leave (school/daycare closures) benefits. For more information on how the FFCRA benefits work, see this April blog post.
This is a significant and dramatic change from prior guidance provided by the DOL requiring immediate assessment by healthcare employers.
In addition to technical compliance with the rule, healthcare employers need to think carefully about how providing benefits for one group of employees might impact internal public relations when other employees do not feel that they are receiving the same benefits.
The Big Picture
This change is not retroactive; only active going forward. Healthcare employers, particularly those who are public employers, should seek the advice of their legal counsel regarding how these various regulations now interact.