We recently sent an alert to our clients to let them know that the Department of Labor (DOL) has substantially narrowed the categories of employees who are “Health Care Providers” who can be excluded from being afforded leave under the Families First Coronavirus Response Act (FFCRA). Because you might read our blog but not receive our client alerts, we have posted this to make sure that you are aware of the impact that the recent changes may have on your organization. So, if you’re in the health care business or employ health care workers, and you don’t already know that you now have to provide some of your employees with FFCRA leave, please keep on reading. If not, feel free to send this one to your trash.
(We are not going to torture you with yet another explanation of the FFCRA before we get to the good stuff. So, if you have been in a coma, living in a cave, have amnesia, or have simply elected not to pay attention to the FFCRA, general information about it can be found here.)
Not All Employees Who Work in Health Care Are “Health Care Providers”
When it comes to providing emergency paid sick leave and expanded FMLA, the FFCRA permits employers to exclude “Health Care Providers” from eligibility for leave in order to avoid disruption to the health care system. Prior to the DOL’s revised rules, employers (and their attorneys) reasonably believed that health care organizations could exempt all of their employees from FFCRA-time off. After all, that made sense. How could a medical practice run with just its medical/patient care staff? Would cardiac doctors handle billing after hours, right after they finished scheduling patients? Would patients walk in to find no one to check them in? Would IT be handled by a dermatologist? According to the amended regulations, the answers to all of those questions may now be “yes.”
It’s About the Employee’s Job, Not the Employer’s Business
Before we get into who is and is not a Health Care Provider that can be exempted from FFCRA, we need to point out that an employee does not need to work at a health care facility to be a Health Care Provider, nor does the fact that the employee works at a health care facility make the employee a Health Care Provider. The revised rule makes it clear that employees who fall under the Health Care Provider exemption may work, among other places, at a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. However, just working at one of those places does not a Health Care Provider make.
Oh, and one other thing that might go without saying, but we are going to say it anyway. When the employee has COVID-19 or has been tested and is seeking treatment, the employee should be allowed to take the time off so as not to pose a threat to health and safety. In our opinion, the exemption should only be used (if applicable) for reasons other than the employee’s own health situation.
Who Remains Eligible for the Exemption?
Under the revised exemption rule, employers do not have to provide time off under the FFCRA to “Health Care Providers” (unless they want to do so). Health Care Providers fall into these categories:
- Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices;
- Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the state and performing within the scope of their practice as defined under state law;
- Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law;
- Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
- Any other employee who is capable of providing health care services, meaning he or she is employed to provide:
- diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);
- preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);
- treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments);
- or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).
As to #5, the revised rule provides that the only types of employees falling under that category are
- Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in 5 above;
- Employees providing services described in 5 above under the supervision, order, or direction of, or providing direct assistance to, a person described in numbers 1-4 above or A above; and
- Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.
Because #5 is somewhat confusing, it might help you to know which employees are entitled to time off under the FFCRA and cannot be exempted.
Employers Must Offer FFCRA Time to Certain Employees—Even if They Work in Healthcare
If an employee’s services merely affect the provision of health care services, the employee cannot be exempted from the FFCRA time-off requirements. Examples of those employees include IT professionals, building maintenance staff, human resource personnel, cooks, food service workers, records managers, consultants and billers. Clearly, the reasoning is unclear. Your maintenance staff that is putting in extra efforts to deep clean and sanitize your provider’s offices are not exempt.
When it comes to FFCRA leave for remote schooling reasons, it’s possible that many health care employees who cannot be exempted will be out at the same time. If you have enough staff who are not raising children and who can fill in while others are on leave, you’re fortunate. For some smaller health care organizations, some employees are being required to take on much more work than normal to cover for those on FFCRA leave, and in some cases, they are handling work that they frankly do not know much about. In many cases, bringing in temporary workers to cover for those out simply won’t work due to confidentiality issues, the nature of the job, and/or training required to get the job done.
To Be or Not to Be A Health Care Provider
Not all employees will fall neatly into or outside of the Health Care Provider exemption. What about the medical assistant who spends some time working in accounts receivable? Should that employee receive FFCRA just for the time the employee would be in AR? What if the employee floats back and forth as needed between Health Care Provider and administrative role as needed? As the Health Care Provider exemption continues to evolve, we will update you. If you need assistance in figuring this all out in the meantime, don’t hesitate to reach out.