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DOL Revises Regulations Defining “Health Care Workers”
Narrows Definition of Who May Be Exempt from FFCRA Leave Entitlements

By Colette L. Kopon and Lynn S. Kopon

On September 11, 2020, the Department of Labor (DOL) issued revised temporary rules related to the Families First Coronavirus Response Act (FFCRA), P.L. 116-127, which was signed into law on March 18, 2020. These revised rules are effective beginning on September 16, 2020 until December 31, 2020. The revisions were made by the DOL in response to a Federal District Court decision of August 3, 2020, which vacated certain provisions of the prior rules. New York v. U.S. Department of Labor, Case No. 20-cv-3020 (S.D.N.Y. 8/3/20).

The provisions of the FFCRA rules that have been revised as a result of the District Court’s decision include:

1. The FFCRA continues to impose a “but-for” causation standard that requires that the employee have work available from the employer in order to qualify for leave under the Act. Qualification for leave under the Act must be related to the qualifying reasons explained in the emergency paid leave provisions of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA), and not due to a lack of work from the employer. (see discussion below)

2. Employer’s approval is still required in order to take intermittent FFCRA leave, which is consistent with long term FMLA requirements governing intermittent leave under that law.

3. The revised rules narrow the definition of “health care provider,” which focuses on the class of employees who may now be entitled to the emergency leave provisions of FFCRA. (Further discussion below).

4. Reasonable notice requirements of the need for leave do not include notice to the employer prior to taking leave. It requires the employee to provide notice to the employer of the need for the FFCRA emergency leave as soon as practicable.

In considering the District Court’s decision, the DOL adopted a revised definition of “health care provider” as a person who is employed to provide diagnostic services, preventative services, or treatment services. In addition, there is a fourth category that includes services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care. The DOL has determined that an employee is “capable” of providing health care services if he or she is employed to provide those services. The DOL also indicated that “health care services” may encompass some services for which a license, registration or certification is not required. These revisions have clarified that whether an employee is a health care provider, for purposes of exemption from emergency leave entitlement, is not determined by who they are employed by but what activities the work involves.

It is not sufficient that an employee works for an entity that provides health care services. The employee must be capable of providing health care services and those services must be integrated and necessary to the provision of patient care that if not provided, would adversely impact patient care. 29 CFR 826.

Section 826.30(c)(1)(ii)(A) indicates that included within the definition of health care providers are nurses, nurse assistants, medical technicians and others who provide diagnostic, preventive, or treatment services, or other services integrated with and necessary to the provision of patient care. In addition, employees providing services under the supervision, order, or direction of health care providers, or providing direct assistance to health care providers are also health care providers. The revised rules also indicate that health care may include services that are reasonably understood to be broader than actual health care including, for example, laboratory technicians who process test results, which are related to diagnosis.

Example of diagnostic services include, taking or processing samples, x-rays or other testing procedures, and interpretation of tests. Preventative services include, as examples, screenings, check-ups, and counseling to prevent illnesses, disease, or other health related problems. Treatment services includes surgery or other interventions, administering or providing prescribed medication, pulmonary assistive techniques, etc.

Health care services also includes services that are integrated with treatment services and patient care that if not provided would adversely impact patient care. These services may include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment, transporting patients and samples, etc.

The revised rules also provide examples of employees who are not health care providers including information technology professionals, building maintenance staff, human resources personnel, cooks, food service workers, records manager, consultants, and billers. The DOL indicates that while these are related to health care, the connection if too attenuated to be considered necessary components of patient care. 29 CFR Sec. 826.30(c)(1)(iii). These workers then, may be qualified for emergency leave under the emergency paid leave requirements of the Families First Corona Virus Response Act.

A review of the FFCRA leave provisions reminds us that the Act provides that covered employers (those with fewer than 500 employees) must provide to all employees the following emergency leave related to Covid-19. Health care workers were not eligible (exempt) from these leave provisions in order to prevent disruptions in the health care system.

1. Two weeks of paid sick leave where the employee is unable to work because the employee is quarantined pursuant to a government order or on the advice of a health care provider, or is experiencing symptoms related to Covid-19 and is seeking a medical diagnosis (EPSLA); or

2. Two weeks of paid sick leave at the rate of two thirds of the employee’s regular rate of pay if the employee is unable to work because of a need to care for an individual subject to quarantine pursuant to government order, or to care for a child whose school or child care provider is closed or unavailable because of reasons related to Covid-19. (EPSLA)

3. For an employee that has been employed for at least 30 days, a covered employer must provide up to 10 additional weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to the need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to Covid-19. (EFMLEA)

Should you have any questions regarding these issues, please contact Colette Kopon at [email protected].