Health Care Provider Exemption Addressed
Recently the Department of Labor (DOL) issued clarifications to the Families First Coronavirus Response Act (“FFCRA”) regarding the “health care provider” exemption to employer-provided paid time off and paid leave.
The FFCRA states that an employer of “a health care provider or an emergency responder” may elect to exclude such employee from the application of the paid sick leave and paid family leave requirements.
The FFCRA defined “health care provider” consistent with the very narrow definition of that term under the Family and Medical Leave Act of 1993 (“FMLA”).
Under FMLA, a health care provider only includes medical and osteopathic doctors and others specifically defined by the US Secretary of Labor in the corresponding FMLA regulations.
Some of these specifically defined occupations include numerous different field providers who can certify an employee’s need for paid leave under the traditional FMLA, such as:
- nurse practitioners
- nurse midwives
- clinical social workers
- physician assistants
However, in order to combat the COVID-19 outbreak, the Department of Labor (“DOL”) believes the term “health care provider” is not limited just to diagnosing medical professionals as defined under the traditional FMLA definition.
In the DOL’s clarification, it states that health care providers include any individual who is capable of providing health care services necessary to combat the COVID-19 pandemic.
The DOL Expands the Definition of a Health Care Provider
The DOL’s expanded definition of a health care provider includes not only those defined in the FMLA definition, but also any employee employed at any:
- doctor’s office
- health care center
- post-secondary educational institution offering health care instruction
- 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 institution
- location or site where medical services provided
The exemption also includes emergency responders. Emergency responders are defined by the DOL as anyone that:
- Interacts with and aids individuals with physical and mental health issues (including COVID-19).
- Ensures the welfare and safety of our communities and our nation.
- Has specialized training relevant to emergency response.
- Provides essential services relevant to the American people’s health and well being.
How Does an Exemption Work?
The DOL emphasizes that the intent behind the health care provider exemption is to minimize the spread of COVID-19. Employers should look at using the exemption on a case by case basis taking into account the employee’s health and the need for the essential services to protect the public from COVID-19.
If an employee elects to utilize an exemption for an employee, they should document the reasons behind the exemption and retain the documentation in their files in case of audit. We suggest that employers be very judicious when utilizing the exemption.
For other DOL FFCRA questions click here.
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