DOL Changes Definition of “Health Care Provider” for FFCRA Leave Exemption

The DOL recently made two subtle but important changes to its regulations implementing the Families First Coronavirus Response Act. The changes come in response to a federal court ruling holding that some provisions of the regulations are invalid. The changes are to the definition of “heath care provider” and the timing of an employee’s submission of documentation supporting their need for FFCRA leave. Both changes become effective September 16, 2020.

First, FFCRA states that employers may designate “health care providers” from both the paid sick leave and paid FMLA leave entitlements of the FFCRA. In its regulations issued back in April, the DOL used a broad definition of the term “health care provider” which generally included anyone employed by a health care facility. This was read by many, including the DOL, to exempt even those who had nothing to do with the provision of health care, such as a cafeteria manager or an English professor at a university with a medical school.

Now, the DOL is narrowing the definition to include only two categories of individuals. First, a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue certification for FMLA leave. The second group is individuals who are employed to provide “diagnostic, preventative, treatment, 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 DOL specifically notes that a person is not exempt from FFCRA leave simply because they work for an employer who provides health care services or because they provide a service that affects the provision of health care services. Examples include IT professionals, building maintenance staff, and human resources personnel.

The second change made by the DOL is to the timing of an employee’s submission of documentation supporting their need for leave under the FFCRA. Originally, the employee was required to submit documentation prior to the start of their leave. Now, the DOL simply requires employees to submit the documentation as soon as practicable.

The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP regularly assist employers with FFCRA compliance.  If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614-221-1216.