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Clarifying the FFCRA’s “Health Care Provider” Exemption

Posted by Ali Oromchian on September 28, 2020

The year 2020 hasn’t been the most predictable or in many cases, the most profitable. 

COVID-19 hit the world like a ton of bricks. No one was anticipating such an event, especially businesses. The impact of the virus quickly rippled through various industries, having a significant impact on those working in health care.

Due to the unexpected effects of COVID-19, on April 1, 2020, the U.S. Department of Labor (DOL) announced new action regarding the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFML) — both of which fall under the Families First Coronavirus Response Act (FFCRA). The intent of this act is to minimize the spread of the virus while protecting employees. 

Read more: Best Practices for When Your Employees Request FFCRA

This act aims to reduce the effects of COVID-19 by reimbursing private American employers that have fewer than 500 employees. The goal is to offset the cost of paid leave related to COVID-19. However, there are two exemptions — the first is for small businesses with fewer than 50 employees, and the second is for health care providers. 

This left many practices confused, as the DOL’s definition of “health care provider” was not  necessarily black and white; which is why this actually ended up in the New York District Court

Unfortunately, any uncertainty could result in a greater legal risk for employers, which is why you need to take proactive action. Here’s what you need to know. 

“Health Care Exemption” — What You Need to Know

After the FFCRA took effect, it was stated that employers of “health care providers” were to exclude such employees from the EFML and EPSL. The issue was, the DOL’s definition of a “health care provider” was too broad. Basically, this applied to “anyone working for entities that provide health care services or those who work for businesses that contract with or provide services to such entities.”

Meaning, employers may exclude employees who are health care providers or emergency responders from taking paid sick leave. The definition stated that “health care providers” include licensed doctors of medicine or osteopathy, as well as “any person determined by the Secretary to be capable of providing health care services.” 

As stated on the DOL’s website:

“For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, 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.”

Once again, levels of confusion rose following the recent ruling by the Southern District of New York, as the DOL shared inconsistent interpretations of the definition. 

Formerly, the healthcare exemption was notably ambiguous about whether dentists qualified for the exemption. Because of this ambiguity, the American Dental Association previously confirmed that if dentists met the small business exemption, “dental office owners are not required to pay paid sick leave or extended family leave if the employee has a child whose school or daycare is closed due to COVID-19, as long as they meet one of three criteria."

Further Clarification Has Now Been Made

Changes were made on September 11, 2020 regarding the definition of a health care provider for the purposes of this exemption, which went into effect on September 16th, 2020.

As stated by the U.S. Department of Labor:

“For the purposes of defining the set of employees who may be excluded from taking paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider includes two groups.  

This first group is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA. For example, podiatrists, dentists, clinical psychologists, optometrists, and chiropractors. 

The second group is “any other person who is 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.” For example, nurses, hygienists, medical technicians, and opticians, as well as those who directly assist providers of such care. 

IMPORTANT: While these updates are at the federal level, a new law states that all California employers are prohibited from using the health care exemption entirely, including the groups outlined above. However, the FFCRA still permits a small-business exemption for those who are eligible. 

How Does an Exemption Work?

At this time, it’s recommended that all practices, including dentists, optometrists, etc., who wish to exempt themselves under the definition of “health care providers” — or have been excluding employees under the DOL’s initial definition seek legal counsel. The penalties for noncompliance are steep, which is why you must keep all documentation. 

In most cases, it’s beneficial not to use the exemption if possible in your practice because:

  • You will get the money back in tax credits, so if paid leave is covered, that is the safest option. 
  • If you exempt yourself, employees may still come into work sick because they need to get paid, which could put you at risk. 

As an employer, you should consider the exemption on a case-to-case basis, taking into account the employee’s health, as well as the need for the essential services they provide when aiming to protect the public from COVID-19. If you do decide to exempt an employee, you need to create and keep detailed documentation, stating the reasons behind the exemption. 

It is best practice to document the following:

  • The assessment made when deciding to exercise the exemption (stating why it’s necessary)
  • Who it will affect 
  • How the employee is critical to the operation of your practice 

In need of assistance? Be sure to check out our COVID resources. Also, seek HR advising through HR for Health. The actions you take today could significantly impact the future of your practice. 

Schedule a call to get started today!

 


Learn more about FFCRA and the Health Care Provider Exemption with the experts at HR for Health. Contact us by phone at 877-779-4747 or by emailing compliance@hrforhealth.com today.


HR for Health is one of the nation’s leading Human Resources Management Systems (HRMS) used by small to mid-sized practices. 


 

Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services

Topics: leave of absence, exempt, employment law, employment updates, leave, covid-19, coronavirus

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