The U.S. Department of Labor (DOL) has revised its definition of “Healthcare Provider” in response to a recent court decision striking several provisions of the DOL’s final rule implementing the emergency family leave and paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA)  The DOL revised several portions of its April 1, 2020 final rule, and updated its Families First Coronavirus Act: Questions And Answers.   As we previously reported, the United States District Court for the Southern District of New York struck down the DOL’s April 1, 2020, regulations regarding: (1) the requirement that employers actually have work available for employees in order for the employees to be eligible for leave; (2) the broad definition of “health care provider”; (3) the requirement that employees obtain employer approval for intermittent leave; and (4) the requirement that employees provide documentation prior to taking FFCRA leave.  Although the decision created uncertainty about its reach, these recent revisions support that the court’s decision applies nationwide. (See article).

Although the DOL addressed all 4 issues, here we focus on the DOL change to the definition of “health care provider” under the FFCRA:  The DOL has revised the definition of “health care provider” to include only employees who meet the definition of that term under the FMLA regulations or who are “‘employed to provide diagnostic services, preventive 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.

This revision concedes the court’s position regarding health care providers’ eligibility for FFCRA leave. Under the FFCRA, an employer can exclude “health care providers” from paid sick leave and expanded family medical leave entitlements. The district court strongly criticized what it characterized as the DOL’s overly broad view of “health care provider” and opined that the DOL should focus on the nature of the employee’s job and not on the employer’s identity.

In response, the DOL has now revised its definition of “health care provider” to include physicians and others who make medical diagnoses. As reflected in the temporary rule and the DOL’s updated Families First Coronavirus Response Act: Questions and Answers, “health care providers” include licensed doctors of medicine, nurse practitioners, or any other health care providers who may issue an FMLA medical certification. In addition, the definition now includes those who are “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care” and that, “if not provided, would adversely impact patient care.” Finally, the “health care provider” definition includes employees who do not provide direct health care services but who are otherwise integrated into and necessary to providing those services. The DOL includes as an example of this final category, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition.

The temporary rule also identifies positions that are not health care providers. By way of example, this non-exhaustive list includes “information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers,” which positions the DOL considers too attenuated to patient care for exemption form the PSL requirements of the FFCRA.

The DOL’s revised temporary rule includes specific examples of diagnostic services, preventive services, treatment services, and other services that are integrated with and necessary to the provision of patient care. Diagnostic services include 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 include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.”

“Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering or prescribed medication, physical therapy, and providing or assisting in breathing treatments.”

The “other services” category includes “bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

Although employers will have a good-faith basis defense for following the DOL’s initial interpretations of the FFCRA, including its broad exclusion for “healthcare providers,” in light of the DOL’s revised interpretation, prudent employers should promptly revise their policies to reflect the definition of “healthcare provider” consistent with the FMLA’s definition.

The lawyers at Faulkner Law Offices, PLLC can help employers and employees maneuver through these trying times.