[This blog post is specifically related to the “Health Care Providers” exclusion from the scope of the Families First Coronavirus Response Act (FFCRA) leave laws.]
On April 6, the U.S. Department of Labor published a “Temporary Rule” in the Federal Register implementing the paid leave provisions of the FFCRA. The Rule includes a section concerning health care employers’ option to exclude “health care providers” from the paid leaves provided by the Act. Along with the Rule, the Department also published interpretive guidance in the form of a “Discussion” of the Rule’s provisions. While the guidance confirms that “health care providers” may be excluded from the law’s leave requirements, the Department “encourages employers to be judicious in doing so.” Of course, as is a seeming trend with the DOL’s rapid-fire issuance of “Guidance” during the COVID-19 crisis, the term “judicious” is left undefined. This point is discussed below.
For purposes of the exclusion, the Department adopts a definition of “health care provider,” that is broader than the definition which appears in the regular Family Medical Leave Act (FMLA). That definition includes licensed doctors of medicine or osteopathy and “any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. 2611(6). Under the FMLA, the Department interpreted this language narrowly, to refer to medical professionals who are capable of diagnosing “serious health conditions,” in light of the FMLA’s requirement for such health care providers to issue certifications regarding the nature and probable duration of serious health conditions. See 29 U.S.C. 2613; see also 58 FR 31800 (“Because health care providers will need to indicate their diagnosis in health care certificates, such a broad definition was considered inappropriate.”).
Under the FFCRA, however, the Department has interpreted the term “health care provider” for purposes of the exclusion to include, among others, “anyone employed at any doctor’s office, hospital, health care center, clinic, … nursing facility, retirement facility, nursing home, home health care provider, … pharmacy, or any similar … entity.” The definition also includes “any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility ….” The definition of “health care provider” is, clearly, extremely expansive.
Moreover, what is not perfectly clear in FFCRA, but has now been clarified by the DOL in the Temporary Rule and associated guidance, is that employers can pick and choose which “health care provider” employees (as well as which “emergency responders”) they want to exempt from coverage and which they do not. Just because an employer exempts one employee who meets the definition does not mean the employer must similarly exempt another. The decision may be made on an individual basis, or applied to groups of “health care provider” employees based on job duties or other factors.
So, employers have wide discretion in excluding their “health care provider” employees from FFCRA coverage. But what guidance has DOL provided for the exercise of that discretion? DOL says that “[t]o minimize the spread of COVID-19, the Department encourages employers to be ‘judicious’ when using this definition to exempt health care providers (and emergency responders) from the provisions of the FFCRA.” Merriam-Webster’s Dictionary defines “judicious” as “having, exercising, or characterized by sound judgment.” With that in mind, employers will need to use sound judgment in determining which “health care provider” employees need to work during the COVID-19 crisis, and which do not.
There is a balance to be struck. Employees whose services are critical to the provision of health care to the public, particularly our most vulnerable citizens, may be required to continue to work when others might be given leave. On the other hand, such employees may be at particularly high risk of exposure to the Coronavirus, and requiring them to continue working when they otherwise would be entitled to leave risks exposing others, including their coworkers and perhaps their children and other loved ones. And of course, office workers are needed to keep the health care operations running, so they may also be critical. It is obviously not an easy task to be “judicious” in determining who will be entitled to FFCRA leave and who will not.
While the Rule confers broad discretion on employers in making these decisions, as lawyers we suggest that you document your decisions, so that in the event of a controversy you have evidence that you were “judicious” in your approach.
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