By: Deborah L. La Fleur, Shareholder
After a federal judge in New York’s ruling regarding the Families First Coronavirus Response Act (“FFCRA”), the Department of Labor (“DOL”) narrowed the definition of the health care provider (“HCP”) under the FFCRA. Originally, health care employers were able to exclude all of its employees from coverage under the FFCRA. As a result of the amended definition of the HCP, health care employers are no longer entitled to this blanket exclusion under the FFCRA.
The DOL’s amended definition of the HCP still allows an employer to elect to exclude (to not provide paid leave) to certain employees who provide health care services. The DOL published a summary explanation in its FAQ. The narrowed definition of the HCP includes employees who:
- are health care providers as defined under the FMLA, which includes, by example, physicians, some chiropractors, osteopaths, and nurse practitioners;
- "any other person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This includes “employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians”, “employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services”, and employees “who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision of those services, such as laboratory technicians who process medical test results to aid in the diagnosis and treatment of a health condition."
The DOL’s narrowed definition of an HCP does not include employees who are merely employed by an employer who provides health care services or because the employee provides a service that affects the provision of health care services. Examples of employees who are not considered a HCP and therefore entitled to leave under the FFCRA are IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
Because all employees of health care employers were previously excluded from leave under the FFCRA, employers should inform those employees no longer exempt from coverage under the FFCRA of their rights to leave under the FFCRA.