As you may know by now, the newly enacted Families First Coronavirus Response Act provides that employers may exclude health care providers and emergency responders from taking newly provided paid sick leave or expanded FMLA related to the COVID-19. While this has been a positive development for our health care clients, a key question is consistently asked: what about the staff and non-licensed providers that support those health care providers?

The short answer is that these types of employees are not included within the definition of “health care provider” and therefore, without further regulatory guidance or exceptions, they would be entitled to take the newly provided leave.  

The Act does not create a new definition of “health care provider,” but instead incorporates the definition already in the FMLA, which includes:

• A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices; or
• Any other person determined by the Secretary of Labor to be “capable of providing health care services.”​

Existing FMLA regulations, which likewise presumably apply, refine this definition by including the following as others “capable of providing health care services”:

• Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (includes chiropractor scope of practice) authorized to practice in their state (i.e. authorized to diagnose and treat physical or mental health conditions) and performing within their state scope of practice;
• Nurse practitioners, nurse-midwives, clinical social workers, and physician assistants authorized to practice under state law and performing within their state scope of practice;
• Christian science practitioners; 
• Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
• A health care provider listed above who practices in a foreign country, is authorized to practice in accordance with the law of that country, and practices within the scope of his or her practice as defined under such law.

These definitions were provided for the original purposes of limiting who can certify an employee’s need for leave because of a serious health condition. When viewed in this light, these limited definitions make sense because they were crafted with an eye toward individuals who could make diagnoses and recommendations as to an employee’s need for leave from work.

But in the COVID-19 situation, there are some obvious gaps. The foregoing list significantly does not include many types of health care practitioners, such as medical technicians and categories of nurses other than nurse practitioners and nurse-midwives, nor does it include the support staff of a medical practice. Yet it is these very people on which the health care providers necessarily depend to provide patient care.  

The Department of Labor is expected to issue regulations before the April 2 effective date of the Act, and we are hopeful that the regulations will address potential leave exclusions for health care related employees, whose service is critical to providers’ patient care mission. Physician practices and other health care providers therefore should stay tuned for potential further clarification of the health care provider definition and exclusions under the Act, which could materially alter the impact of the Act on health care organizations.