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Department of Labor Narrows FFCRA Exemption for Health Care Providers

By Karin Jones & Laura Rosenbaum on September 16, 2020
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The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain to the applicability of FFCRA leave to employees of health care providers. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

The DOL narrowed the applicability of the FFCRA exemption for health care providers. Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or 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 exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave).

Photo of Karin Jones Karin Jones

Karin Jones provides practical advice to employers regarding a wide variety of workplace and personnel issues and helps employers minimize the risk and impact of workplace problems.  When litigation arises, she represents employers before administrative agencies and the state and federal courts.  Karin…

Karin Jones provides practical advice to employers regarding a wide variety of workplace and personnel issues and helps employers minimize the risk and impact of workplace problems.  When litigation arises, she represents employers before administrative agencies and the state and federal courts.  Karin has experience representing employers in disputes involving discrimination, harassment, reasonable accommodation, employee family and medical leave, wage and hour claims, workplace safety (WISHA/OSHA), and whistleblower complaints, among other workplace issues.

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Photo of Laura Rosenbaum Laura Rosenbaum

Laura Rosenbaum is a partner in the Labor & Employment group. She represents clients in employment-related litigation in court and before administrative agencies. Her experience includes defending employers against a wide range of employment claims relating to employment discrimination, harassment and retaliation; medical…

Laura Rosenbaum is a partner in the Labor & Employment group. She represents clients in employment-related litigation in court and before administrative agencies. Her experience includes defending employers against a wide range of employment claims relating to employment discrimination, harassment and retaliation; medical leave laws; disability accommodation; wage & hour disputes; and workplace torts, as well as litigating non-competition agreements. Her practice also involves counseling employers on employment-related issues; conducting internal investigations; and preparing employee contracts, handbooks and policies.

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  • Posted in:
    Health Care, New to the Community
  • Blog:
    Health Law Insider
  • Organization:
    Stoel Rives LLP
  • Article: View Original Source

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