The Families First Coronavirus Response Act (“FFCRA”) became law on March 18, 2020 in response to the COVID-19 pandemic. As we previously blogged on several (okay, numerous) occasions, the FFCRA comprises the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLA”), which provide paid leave in connection with certain COVID-19 related absences from work. Rather than go into each of those circumstances, you can click on any of the above links to our previous blogs. Although most employers are required to offer EPSLA and EFMLA leave to employees, employers are not required to extend leave eligibility to a “health care provider.”
In April 2020, the U.S. Department of Labor (“DOL”) enacted interim regulations and guidance interpreting the FFCRA. Specifically, the DOL implemented a definition of “health care provider” that was broader than the definition contemplated by the FFCRA. The DOL’s definition focused on whether the employer itself was a health care provider as opposed to a particular employee’s functions. Under the DOL’s initial interpretation, all employees of a health care provider, including receptionists, clerks, and other employees not directly involved in providing medical services and treatment, were deemed to fall within the exception and therefore could be denied leave under the FFCRA by their employers.
Challenge to DOL’s Initial Interpretation of FFCRA
In response to the DOL’s interim regulations and guidance, the State of New York sued the DOL in federal court, challenging various provisions of the FFCRA, including the DOL’s interim rules expanding the definition of “health care provider.” Ultimately, in August 2020, the court ruled that certain portions of the DOL’s regulations were invalid, including, among other things, the DOL’s expanded definition of a “health care provider,” which the District Court concluded was overly broad. See New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020). According to the court, the definition of a “health care provider” requires “at least a minimally role-specific determination” of those individuals “capable of providing healthcare services.” Whether an individual is capable of providing healthcare services cannot rest “entirely on the identity of the employer.” (emphasis in original). Rather, inquiry must be made into the individual employee’s “skills, role, duties, or capabilities.” Otherwise, an overly broad definition would result and some employees would be improperly rendered ineligible for FFRCA leave even though their “roles bear no nexus whatsoever to the provision of healthcare services.” (emphasis in original).
DOL’s Revisions and Clarifications
Rather than appeal the court’s decision that struck the challenged DOL regulations, the DOL revised and clarified the portions of its FFCRA regulations that the court found to be invalid. With respect to the definition of a “health care provider,” the DOL modified its earlier interpretation to place greater emphasis on the role and job duties of individual employees, not the employer. Thus, the DOL’s definition of a “health care provider” for purposes of determining FFCRA leave eligibility is now limited to those employees who are health care providers under 29 CFR 825.102 and 825.125 (i.e. physicians and others making medical diagnoses) as well as those individuals who are capable of providing health care services (i.e. those employees “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”).
The “integrated with and necessary to the provision of patient care” language in the DOL’s revised definition of “health care provider” broadens the scope of the definition beyond what is stated in the FFCRA, but is narrower than the DOL’s initial definition that applied to “all employees” and was rejected by the court last month. Examples of employees who do not meet this revised definition of a “health care provider” and therefore are entitled to EPSLA and EFMLA leaves include, but are not limited to, IT professionals, building maintenance staff, HR employees, cooks and food service employees, records managers, consultants, and medical billing personnel. Although services performed by these employees may relate to patient care, they are “too attenuated to be integrated and necessary components of patient care.”
Based on the DOL’s revised rule, a determination of whether an employee qualifies as a “health care provider” under the FFCRA must be made on an individual, case-by-case basis, after careful consideration and analysis of the employee’s specific role and job duties.
A healthcare employer can no longer assume that its status as a “health care provider” exempts all of its employees from being able to take leave under EPSLA and EFMLA. Beyond providing leave, these employers must also comply with the FFCRA’s notice obligations.
As always, Murtha Cullina’s Labor and Employment Group is available to discuss your specific situation and guide you through the ever-changing landscape of employee leave entitlements.