Department of Labor Defines “Health Care Provider” Exempted Under Families First Act

While the Families First Corona Response Act (FFCRA) requires private employers with fewer than 500 employees to provide paid leave and paid expanded FMLA leave to employees unable to work or telework for several specific COVID-19 reasons, it allows employers to exclude “health care providers” from receiving the paid leave and paid expanded FMLA leave. 

Initially, the definition of “health care provider” was unclear. Under existing FMLA, physicians, nurse practitioners, and physician assistants fall within the “health care provider” definition. However, that definition does not include LPNs, RNs, and CNAs or employees key to the operation of a health care setting. 

Over the weekend, the Department of Labor (DOL) supplemented its previously issued Q&A guidance to define a “health care provider” who may be excluded by their employer from paid sick leave and paid expanded FMLA leave. In general, the definition appears to provide significantly more flexibility for senior care providers than initially expected.

In Question No. 56, the DOL defined broadly who is a “health care provider” who may be excluded by their employer from paid sick leave and paid expanded FMLA leave:

[A]nyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, 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 institution, employer, or entity.

A health care provider also “includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions” and “any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility [and] … anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.” Finally, the definition includes “any individual that the highest official of a state … determines is a health care provider necessary for that state’s … response to COVID-19.”

While DOL has defined this exempt category of employees broadly, it has encouraged employers to help minimize the spread of the virus by being judicious in exempting health care providers.

Essentially, DOL is asking providers to craft policies at their individual sites that balance the need to minimize the spread of the virus by keeping people home with the need to continue to operate and be adequately staffed to combat the COVID-19 pandemic. It will be up to employers to craft policies at their individual locations to determine which employees will be exempt from the FFCRA provisions.

The guidance with respect to independent senior housing or assisted living is not crystal clear. An argument may be made that employees of these providers would be covered by the definition, and we continue to advocate to make this explicit. 

Finally, even if an employer elects to exempt health care providers from receiving paid sick leave and paid expanded FMLA leave under the FFCRA, the employee still may be eligible for other benefits, such as traditional unpaid FMLA or paid leave provided under Minnesota state law or local ordinances.

Remember: This exemption is optional and should be evaluated on a case-by-case basis in order to minimize the spread of the virus.

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