DOL Defines Health Care Provider for FFCRA Leave Provisions
The US Department of Labor recently issued an FAQ document regarding the expansions of paid sick and family leave in the Families First Coronavirus Response Act (FFCRA). The document indicates that state governors have the authority to designate Direct Support Professionals as health care providers for the purposes of the exemption from these provisions, which amend the Family and Medical Leave Act to extend these benefits more broadly during the COVID-19 national emergency. DOL will be issuing implementing regulations.
Of particular interest to state DD systems, DOL clarifies the meaning of “health care provider” under FFCRA and FMLA. FFCRA allows health care providers to be exempted from the expanded sick and family leave benefits, and connects this exemption to the already existing definition in the FMLA. The definition in FMLA originally existed to define entities that could provide diagnoses or plans of treatment that would qualify others and their family members for FMLA benefits. DOL clarifies that the term “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave “means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.”
However, the FFCRA provisions also indicated that a “health care provider” could be excluded by their employer from paid sick leave and/or expanded family and medical leave. For the purposes of this exemption, DOL clarifies that “a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, 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, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.” This definition includes “any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.” Importantly, DOL has also determined that the definition also includes “any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”
State DD agencies, as public sector employers, may also be interested in the two questions and answers reproduced below:
52. I am a public sector employee. May I take paid sick leave under the Emergency Paid Sick Leave Act?
Generally, yes. You are entitled to paid sick leave if you work for a public agency or other unit of government, with the exceptions below. Therefore, you are probably entitled to paid sick leave if, for example, you work for the government of the United States, a State, the District of Columbia, a Territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar government entity subject to the exceptions below. The Office of Management and Budget (OMB) has the authority to exclude some categories of U.S. Government Executive Branch employees from taking certain kinds of paid sick leave. If you are a Federal employee, the Department encourages you to seek guidance from your respective employers as to your eligibility to take paid sick leave.
Further, health care providers and emergency responders may be excluded by their employer from being able to take paid sick leave under the Act. See Questions 56-57 below. These coverage limits also apply to public-sector health care providers and emergency responders.
53. I am a public sector employee. May I take paid family and medical leave under the Emergency Family and Medical Leave Expansion Act?
It depends. In general, you are entitled to expanded family and medical leave if you are an employee of a non-federal public agency. Therefore, you are probably entitled to paid sick leave if, for example, you work for the government of a State, the District of Columbia, a Territory or possession of the United States, a city, a municipality, a township, a county, a parish, or a similar entity.
But if you are a Federal employee, you likely are not entitled to expanded family and medical leave. The Act only amended Title I of the FMLA; most Federal employees are covered instead by Title II of the FMLA. As a result, only some Federal employees are covered, and the vast majority are not. In addition, the Office of Management and Budget (OMB) has the authority to exclude some categories of U.S. Government Executive Branch employees with respect to expanded and family medical leave. If you are a Federal employee, the Department encourages you to seek guidance from your respective employers as to your eligibility to take expanded family and medical leave.
Further, health care providers and emergency responders may be excluded by their employer from being able to take expanded family and medical leave under the Act. See Questions 56-57 below. These coverage limits also apply to public-sector health care providers and emergency responders.
FMI: The guidance can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.