Change of Law: Hospital Action Required
|To:||Rural Hospital Administrators, Legal Counsel, and Government Affairs Staff|
|From:||David Streeter, MPA, Policy Director- Clinical and Data
DavidS@wsha.org | (206) 216-2508
|Subject:||Changes to Health Care Provider Leave Under FFCRA|
The purpose of this bulletin is to inform hospitals about the narrowed definition of “health care provider” as it applies to the employee leave exemptions in the Families First Coronavirus Response Act (FFCRA), effective September 16, 2020, until December 31, 2020. The narrowed definition means the leave exemptions only apply to health care providers who meet specific criteria described in the revised FFCRA leave exemption regulations.
The FFCRA applies to employers with 500 or fewer employees, including hospitals. The recent FFCRA regulatory change clarifies which employees are considered a “health care provider” and are eligible for the leave exemptions for the Emergency Family Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).
While the previous definition of “health care provider” eligible for the leave exemption was quite broad, the new definition is narrower:
- Eligible for the leave exemption: Doctors, nurses, nurse assistants, medical technicians, and any other employees integrated into the provision of health care services.
- Ineligible for the leave exemption: IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, billers, and other employees who do not provide health care services.
- Review this bulletin and the updated language in 29 CFR § 826.30 with legal counsel to ensure your hospital is applying the leave exemption consistent with the revised regulations.
- Make any changes necessary to your COVID-19 leave policies to comply with the revised regulations.
- Share your COVID-19 leave policies with employees pursuant to the notification requirements in 29 CFR § 826.80.
Families First Coronavirus Response Act
The FFCRA established two COVID-19 specific leave allowances for employees, EPSLA and EFMLEA. EPSLA allows certain employees to take up to two weeks of paid sick time. EFMLEA allows certain employees to take up to 12 weeks of family medical leave. Both programs permit employers to exempt employees who are “health care provider[s]” or “emergency responder[s]” from the leave allowance. The U.S. Department of Labor (DOL) initially issued regulations that contained a broad definition of “health care provider,” which some employers interpreted to mean anyone employed by a health care providing entity. However, the state of New York successfully challenged DOL’s initial regulations, which resulted in DOL issuing new regulations to comply with the U.S. District Court’s opinion.
Narrow Definition of “Health Care Provider”
To comply with the court decision in New York v. U.S. Department of Labor, DOL revised its definition of “health care provider” 29 CFR § 826.30 to reflect the duties performed by the employee. This means for an employer to apply the leave exemption to a “health care provider,” the employee must meet this definition:
(A) Any Employee who is a health care provider under 29 CFR §§ 825.102 and 825.125, or;
(B) Any other Employee who is capable of providing health care services, meaning he or she is 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, if not provided, would adversely impact patient care.
The definition referenced in 20 CFR § 825.102 defines health care provider as:
(i) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
(ii) Any other person determined by the Secretary to be capable of providing health care services.
Moreover, DOL added additional context in 29 CFR § 826.30 to distinguish which employees are eligible for the exemption:
- Eligible: Nurses, nurse assistants, medical technicians, and any other employees integrated into the provision of health care services are eligible for the exemption.
- Ineligible: IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, billers, and other employees who do not provide health care services.
Please review 29 CFR § 826.30(c) for the full definition of “health care provider” and eligibility criteria for the leave exemption.
Share this bulletin with appropriate hospital leaders so they understand the narrowed definition of “health care provider” and can update COVID-19 leave policies accordingly.
WSHA’s 2020 New Law Implementation Guide
Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.
Congress passed the FFCRA in March 2020 in response to the COVID-19 pandemic. Among its many provisions, the FFCRA established two COVID-19 specific leave allowances for employees, EPSLA and EFMLEA. DOL issued temporary regulations in April 2020 to implement FFCRA, which are effective until December 31, 2020.
The state of New York successfully challenged four parts of DOL’s initial FFCRA regulations In New York v. Department of Labor. The decision resulted in DOL issuing new regulations on September 16, 2020 to comply with the U.S. District Court’s opinion. The new regulations took effect September 16, 2020, and remain effective until December 31, 2020.
29 CFR § 826.30– Employee Eligibility for Leave Under FFCRA
29 CFR § 826.90– Employer Notice
20 CFR § 825.102– Coverage Under the Family and Medical Leave Act- Definitions
DOL Press Release September 11, 2020