On Friday, March 20, Jackson Walker presented a webinar discussing key provisions of the Families First Coronavirus Response Act that impact employers most. During the Q&A portion of the webinar, Healthcare partner Jeffery P. Drummond responded to questions related to healthcare providers, including the following:

Healthcare providers are exempted under the Act, but what is a “healthcare provider” under the FFCRA? Can an entity (such as a hospital or physician practice) be a covered entity? Does the term refer to the employer or the employee?

The FFCRA permits an employer to exclude an employee who is a “health care provider” from the requirements to provide additional FMLA leave and sick time. In other words, while the employer covered by FFCRA must generally grant extended FMLA leave and sick time to its employees, it can refuse to grant the extra time and sick pay to employees who are health care providers and emergency responders.

The FFCRA does not define “health care provider,” but instead references and adopts the definition in FMLA. The FMLA statute defines a “health care provider” to be a licensed doctor of medicine or osteopathy (an MD or a DO), but notes that the Secretary of Labor may issue regulations to include other providers in the definition. In the federal regulations implementing FMLA, the Secretary expanded the definition “healthcare provider” to include the following:

1. licensed and practicing podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (but only with respect to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist);
2. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;
3. Listed Christian Science Practitioners in Boston, Massachusetts;
4. Any healthcare 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
5. A licensed healthcare provider in a foreign country practicing in accordance with the law of that country.

Thus, one may conclude that “healthcare provider” includes not only MDs and DOs, but also podiatrists, dentists, psychologists, optometrists, certain chiropractors, physician extenders such as nurse practitioners and physician assistants, and the others listed. The definition does not include regular nurses, medical technologists, physical therapists, or other employees working for an employer in the healthcare field, such as front office workers. The definition also only includes individuals, not entities, and is focused on the employee, not the employer.

It is important to note that under the original FMLA, the reason a “healthcare provider” is defined is because employers may, in certain instances, require that employees seeking FMLA accommodation prove that they really are medically affected. The original FMLA regulations were drafted to define the type of “healthcare provider” a reasonable employer should be able to rely upon to opine regarding the employee’s medical condition.

However, FFCRA uses “healthcare provider” in an entirely different context – the type of employee to whom an employer may deny extra FMLA leave or paid time off. In that context (what types of employees may be too important to give extra time off), the FMLA context (what types of outside experts should certify an employee’s medical condition) may be inapplicable.

Thus, in the interim, it is clearly safe to conclude that employees who are licensed MDs and DOs may be excluded from the employees who get additional FMLA leave and paid sick time. It may also be reasonable to conclude that employees who are podiatrists, optometrists, dentists, nurse practitioners and the like may also be excluded from the additional benefits, but regular nurses, clerical and administrative staff, and techs are entitled to the additional benefits. However, given the misfit of the definition, it may be best to wait and see if the FFCRA regulations provide a different expansion of the definition that that given under the FMLA regulations.

Finally, while the definition of a “healthcare provider” is subject to debate based on the currently-provided definition, note that FFCRA does not even define “emergency responder.”