The Families First Coronavirus Response Act (FFCRA) requires eligible employers to provide emergency paid sick leave (EPSLA) and Expanded Family Medical Leave (EFMLA) to its employees. However, the FFCRA also provides an exception for emergency responders and “health care providers” who are not automatically entitled to the benefits under the FFCRA. After months of ambiguity, the Department of Labor (DOL) has now revised the definition of “health care provider” for purposes of the employer’s optional exclusion permitting FFRCA leave to its employees. This revision outlines the appropriate “health care provider” that an employer can refuse to cover under the FFCRA. The applicable “health care providers” are as follows:

1. Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
2. Any other employee who is capable of providing health care services, meaning he or she is employed to provide:

• diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);
• preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);
• treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments);
• or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).

The revised rule further explains that the type of employees falling under this last category include only:

1. Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in (2) above;
2. Employees providing services described in (2) above under the supervision, order, or direction of, or providing direct assistance to, a person described in numbers (1-2) above or (a) above; and
3. Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

The DOL stated that employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services. This includes IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers. This list is illustrative, not exhaustive.

The revised Rule also recognizes individuals who fall under the newly revised definition may work at a doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided. Though, the DOL explained that an employee does not need to work at any of the above-mentioned to be defined as a “health care provider.” Alternatively, working at one of those facilities does not necessarily mean an employee is a health care provider for purposes of the FFCRA.

If you have questions or are in need of assistance in deciphering whether your employees are defined as “health care providers” under the FFCRA, please contact one of the attorneys in our Employment Law Group at 1-888-488-2638.