New York state recently sued the United States Department of Labor (USDOL) regarding the definition of "health care provider" in the Families Frist Coronavirus Relief Act (FFCRA). On August 3, 2020, the court ruled that the definition of "health care provider" initially included FFCRA as it applied to employee eligibility for paid leave provisions was too broad. As you all know, the Chapters fit comfortably within the original exemption and, to our knowledge, have not applied its leave provisions due to this broad exemption.
The court emphasized that the definition of "health care provider" was too focused on the operations of the employer, rather than the individual skills, role, duties, or capabilities of individual employees. The decision concluded that the definition must instead be based on which persons are "capable of providing health care services." The USDOL announced September 11 that it was issuing a temporary rule addressing the issues with the initial definition of the term "health care provider." The USDOL adopted a revised definition of the term and the temporary rule was published in the Federal Register on September 16.
The temporary rule adopts a revised definition of "health care provider" for purposes of an employer's optional exclusion from the leave provisions under the FFCRA. The new definition provides two main groups of employees who will be considered "health care providers" for purposes of FFCRA leave eligibility. The categories are briefly summarized as follows:
A. Any employee who is a "health care provider" under the FMLA regulations in 29 CFR 825.102 and 825.1251, a brief and not conclusive list of examples are:
- podiatrists, dentists, clinical psychologists, optometrists, and chiropractors
- nurse practitioners, nurse-midwives, clinical social workers and physician assistants
B. Any employee who is capable of providing health care services, which means an employee who is employed to provide:
- diagnostic services
- preventive services
- treatment services
- other services that are integrated with and necessary to the provision of patient care that would adversely impact patient care if not provided
The rule states that employees who do not provide health care services as described above are not "health care providers," even if the employee's services could affect the provision of health care services. Determining whether most Chapter employees could be excluded will require a fact-specific analysis of programs and the duties employees perform as part of those programs.
A few examples of services and staff that are employed by The Arc New York and where they may fall on the exemption list is as follows. Through clinical services, a Chapter may employ nurses, nurse assistants, and other staff. Nurses, nurse assistants, and medical technicians employed by The Arc would likely qualify as "health care providers" under category "B" so long as they are employed to provide diagnostic, preventive, or treatment services, or services that are integrated with and necessary to providing such patient care services. Clinical social workers and clinical psychologists that may be employed by Chapters as part of a psychological services unit would also likely qualify as "health care providers" under category "A" since both clinical social workers and clinical psychologists are recognized as "health care providers" under the applicable FMLA regulations.
Employees providing diagnostic, preventive, or treatment services under the supervision, order, or direction of, or providing direct assistance to, clinical social workers, clinical psychologists, nurses, nurse attendants, medical technicians, or any other persons who directly provide such services may also qualify as health care providers under category "B."
Day Habilitation Services can include services for individuals with complex medical needs and/or challenging adaptive behavior needs. Such services may include clinical supports, occupational, physical and speech therapy, podiatry services, where those employees providing the service may qualify as "health care providers" under category "A." Physical therapists may also qualify under category "B" if they are hired to provide physical therapy services, which is an example of a "treatment" service under the rule.
Transportation employees may qualify under category "B" provided the transportation is for purposes of taking the patient to diagnostic, preventive, or treatment services. Depending on a particular Chapter's arrangements for such transportation, employees engaged in such services may or may not qualify for the "health care provider" exclusion.
Residential Services will require a fact-specific overview based on the duties the employees are performing. A few examples that may constitute "services that are integrated with and necessary to diagnostic, preventive, or treatment services" are services such as bathing, dressing, and hand-feeding. In addition, services including providing or administering prescribed medication is an example of "treatment services." Therefore, depending on the level of support needed, it is possible that some residential service employees may qualify as "health care providers" under category "B," because they are employed to bathe, dress, or hand-feed residents, and provide or administer prescribed medication.
We recognize that this will be a labor-intensive process for each Chapter to categorize employees based upon duties and responsibilities. The National Council of Nonprofits is hosting a special webinar to address the implications of this rule change on September 24 at 3 p.m.
The webinar will host speakers from the U.S. Department of Labor who will address the following items:
- Walk participants through the requirements of the laws
- Explain which employees and employers are and are not covered
- Discuss the concept of intermittent family leave in the context of school reopening
- Address the recent federal court decision and changes to Labor Department regulations effective September 16
Registration for the webinar can be completed here