DOL LIMITS COVID-19 FMLA "HEALTH CARE PROVIDER" EXEMPTION

When the U.S. Department of Labor (“DOL”) initially issued regulations implementing the Families First Coronavirus Response Act’s Emergency Family Medical Leave (“EFMLA”) and Emergency Paid Sick Leave (“EPSL”) provisions, it included a fairly broad “health care provider” exemption that allowed health care employers to exclude their employees from the paid leave mandate. In March 2020, the DOL issued a definition of “health care provider” that included any employee “employed at any doctor’s office, health care center … any similar institution.” For employers that rely on employees to provide direct care, this exemption was a basis to deny EFMLA and EPSL to their entire workforce.

On September 11, 2020, the DOL issued new regulations that are effective today (September 16, 2020). The regulations include provisions that limit who will qualify as a health care provider. The DOL has now incorporated a more restrictive definition that limits health care providers to professionals such as physicians and nurse practitioners that are “allowed to practice…” and “other employees who are employed to provide diagnostic services, preventative services, treatment services and other services that are integrated with and necessary to the provision of patient care…” The new regulations also identify nurses, nurse assistants, medical assistants and “any other persons who directly provide [patient care] services” as exempt.

While the new regulations are not a model of clarity, the DOL has made it clear that simply working for or providing services to a health care provider is no longer enough to fall within the exemption. The regulations also specifically exclude certain work as outside the definition such as building maintenance and food services.

Pannone Lopes Devereaux & O’Gara LLC employment attorneys will continue to provide updates and alerts as the DOL issues further guidance while states reopen their economies. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. O’Gara at 401-824-5117 or wogara@pldolaw.com.


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