Families First Coronavirus Response Act: Updates for Healthcare Providers

Oct 6, 2020 | Business, Covid-19, Health Care

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced revisions to regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). 

Notably, WHD’s revision clarifies, reaffirms, and provides additional explanation on the following requirements: (1) that employees may take FFCRA leave only if work would otherwise be available to them; (2) that an employee must have employer approval to take FFCRA leave intermittently; and (3) that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable. The revision also corrects information regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Most importantly for healthcare providers, the revision includes an updated definition of “healthcare provider.” 

The revised rule narrows the “healthcare provider” exemption to include: 

  1. Only employees who meet the definition of that term under the Family and Medical Leave Act regulations; or 
  2. Who are employed to provide diagnostic, preventative, treatment or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.

In contrast to previous guidance, the revised rule clarifies that a person is not a healthcare provider merely because his or her employer provides healthcare services or because he or she provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not healthcare providers, even if they work at a healthcare facility. Under the updated rule, individuals who serve healthcare facilities in these roles must be afforded leave under FFRCA.

The revised rule includes specific roles within a healthcare organization that may be exempt from the leave benefits under FFCRA. This list of clinical employees exempt under the new definition includes: 

  1. Doctors of medicine or osteopathy who are authorized to practice medicine or surgery by the state in which the doctor practices;
  2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the state and performing within the scope of their practice as defined under state law;
  3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law;
  4. Other employees that are capable of providing healthcare services and 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, if not provided, would adversely impact patient care; or
  5. Other healthcare providers permitted to issue a certification for purposes of the FMLA.

To read the revised rule, please visit Federal Register/Vol. 85, No. 180/Wednesday, September 16, 2020/Rules and Regulations

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