Healthcare Employers Who Have Excluded Employees from COVID-related Leave Benefits under FFCRA Must Reconsider after USDOL Amends Temporary Regulations

By Jennifer Long and Nicholas J. Lynn

The United States Department of Labor’s (DOL) initial temporary regulations that interpreted and implemented the Families First Coronavirus Response Act (FFCRA) permitted employers to elect to exclude healthcare provider employees from eligibility for the COVID-related leave benefits made available under FFCRA. The initial DOL regulations provided a broad definition of healthcare provider, allowing most employees working for a healthcare provider employer to be excluded from FFCRA leave benefits, including Paid Sick Leave (PSL) and Extended Family and Medical Leave (EFMLA). After a federal district court decision struck down parts of the DOL’s prior final rule, the DOL now has issued revised regulations, which became effective on September 16, 2020, and expire along with the FFCRA on December 31, 2020. For a detailed discussion of the FFCRA requirements and the DOL’s revised temporary regulations, see our April 3, 2020 Alert and our September 17, 2020 Alert.

The revised regulations define “healthcare provider” to include employees providing healthcare services that fall into the following categories:

  • Diagnostic services: 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.
  • Preventative services: screenings, checkups and counseling to prevent illness, disease or other health problems.
  •  Treatment services: performing surgery or other invasive or physical interventions, administering or providing prescribed medication and providing or assisting in breathing treatments.
  • Other services that are integrated with and necessary to provide patient care: bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures and transporting patients and samples.

The revised regulations specifically exclude from the definition of “healthcare provider” employees who “provide services that affect, but are not integrated into, the provision of patient care… such as information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” This list is not exhaustive, but makes clear that the DOL’s intent is that the FFCRA should not be interpreted to exclude health care employees who are not involved directly in providing patient or resident care services.

Employers who previously elected to exclude their health care provider employees from PSL or EFMLA leave benefits must review carefully and update the categories of impacted employees under such policies. Employers who communicated such policies should update them to apply the new definition from the temporary rule and should review carefully any requests for PSL or EFMLA by employees in non-patient or resident care positions.