Jackson Kelly PLLC

Labor & Employment News Alert

Attention Healthcare Employers:  The U.S. Department of Labor Issues New Guidance Regarding the “healthcare provider exemption” under the Families First Coronavirus Response Act.

September 14, 2020

By: Justin M. Harrison

After Congress adopted the Families First Coronavirus Response Act, the U.S. Department of Labor issued a temporary rule that applied to healthcare employers. Specifically, the DOL determined that all employees of certain healthcare providers could be exempted from the new Emergency Family and Medical Leave and Emergency Paid Sick Leave entitlements. The exemption applied to all employees regardless of the services that they performed on behalf of their healthcare employers. In short, all employees of hospitals, doctors’ offices, medical schools, nursing facilities, and retirement facilities were exempt from the new the statutory leave requirements.

The scope of the DOL rule was broad and arguably inconsistent with the statutory language set forth in the FFCRA. Recently, the U.S. District Court for the Southern District of New York issued a ruling that invalidated several aspects of DOL’s temporary rule. Although the effect of the Court’s ruling was limited geographically, the DOL has chosen to address this ruling on a nationwide basis by issuing updated guidance.

Under the new rule, the definition of “healthcare provider” will be limited to those employees who fall into one of the following categories: 

  1. Employees who provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care; or,
  2. Employees who meet the definition of “healthcare provider” under the Family and Medical Leave Act (e.g., doctor of medicine or osteopathy, podiatrists, dentists, psychologists, nurse practitioners, nurse midwives, social workers, physician assistants, etc.).

The new DOL rule was posted late on Friday, September 11, 2020, and will become effective on September 16, 2020.

Healthcare employers that chose to exclude employees from coverage under the FFCRA based upon DOL’s temporary rule will need to update their policies and practices immediately to make sure that they are compliant with the new rule on September 16, 2020.

 

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