New Jersey Executive Order 107
Directive for Healthcare Providers
On March 21, 2020, New Jersey Governor Phil Murphy issued Executive Order 107 (the “Order”), which requires, among other things, that retail businesses, other than certain enumerated essential retail businesses, close their brick-and-mortar premises, beginning at 9:00 p.m. on March 21, 2020, until the Order is revoked by the Governor. 
 
The Order neither requires medical practices or other health care services to close their brick-and-mortar premises nor prohibits NJ residents from seeking medical attention. Indeed, the Order expressly provides that it shall not be construed to limit, prohibit, or restrict in any way the provision of health care or medical services to members of the public. Accordingly, the Order does not require the closure of medical practices and closely-allied healthcare practices (e.g., physical therapy, chiropractic, etc.) or healthcare facilities (e.g., laboratories, ambulatory care facilities or hospitals) (“Healthcare Businesses”).  Underscoring the nature of the public health crisis that the State is facing as a result of the COVID-19 pandemic, the Order includes certain healthcare-related retail businesses, such as medical supply stores, pharmacies, medical marijuana dispensaries, and “ancillary stores within healthcare facilities” among the Order’s enumerated “essential retail businesses” that are allowed to remain open.

However, the Order requires Healthcare Businesses to accommodate their workforce, wherever practicable, for telework or work-from-home arrangements. In other words, for example, if a medical practice offers medical services that do not necessarily require an in-person physical examination of the patient, such a medical practice would be required, under the terms of the Order, to allow its physician and non-physician employees to provide telemedicine services from their home.
 
For those Healthcare Businesses whose brick-and-mortar premises remain open to the public, the Order requires that they “make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” In other words, for example, if a medical practice has employees whose duties need not be performed on-site and may be performed remotely ( e.g., administrative personnel who assist with scheduling of appointments and other administrative matters), then the medical practice should endeavor to enable such employees to work-from-home.

If you have any questions regarding the operation of your healthcare business, please contact Mohamed Nabulsi. 
Mohamed H. Nabulsi
973.979.1150
The Families First Coronavirus Response Act Exemption For Health Care Providers and Emergency Responders
Much has been written the past few days about the Families First Coronavirus Response Act (“FFCRA” or the “Act”). As we have reported, the Act provides two specific benefits for employees of companies with less than 500 employees. First, it provides paid sick leave of up to ten (10) days in addition to whatever paid sick leave states may have already granted by statute. Second, it provides for paid family leave but only under very limited circumstances. There is an exemption, however, for “health care providers” and emergency responders. Our COVID-19 Task Force has fielded many questions since our webinars this past week concerning the breadth of the exemption and how it works.

It is clear the exemption was included in the law to keep health care providers and emergency responders at work and on the front lines to fight the pandemic. Obviously, we don’t want to force those providers who have the virus to expose others. However, the law did not want to give health care providers and emergency responders the unfettered right to stay home and be paid to care for healthy children who are unable to go to school or childcare because of the coronavirus. Both the paid sick leave and paid family leave provisions of the Act allow those who are not health care providers or emergency responders to receive these benefits at least to the extent that they cannot telework.

There are two questions that must be answered to determine the applicability of the exemption. First, who are considered “health care providers” under the Act? Second, how does an employer take advantage of the exemption?

All employees of a hospital, surgi-center or medical group are not exempted from these benefits. The Act makes clear that it is not the employer who must be a health care provider or an emergency responder, it is the employee. Therefore, a secretary or receptionist for a medical group, for example, is a covered employee under the Act and generally entitled to those benefits.

The Act authorizes the Secretary of Labor to promulgate regulations to exclude certain health care providers, as defined in the Family and Medical Leave Act (“FMLA”), from the definition of “eligible employees” under the Act. The FMLA defines “health care provider” to mean a doctor of medicine or osteopathy who is authorized to practice medicine or surgery. It also authorizes the Secretary to include as health care providers any other persons whom the Secretary of Labor determines to be capable of providing health care services. Prior to the adoption of the Act, the Secretary determined that dentists, podiatrists, optometrists, chiropractors, clinical psychologists and nurse practitioners all were health care providers. See 29 C.F.R. 825.125 (b). Presumably, this earlier determination enables employers to designate these practitioners as exempt from the Act. Should the pandemic continue to grow, it would not be a surprise if the Secretary labels others as health care providers exempted from the Act.

Under the Act, it is left up to employers to decide whether to exclude their health care providers from the Act. No approval is needed from the Secretary of Labor.

If you have immediate personnel or employment concerns, please contact Steven Adler.
Steven I. Adler
973.243.7930
This email is for informational purposes only and does not constitute legal advice. Should you wish to obtain legal advice, please contact Mohamed Nabulsi for legal advice regarding healthcare business operations and Steven Adler regarding employment-related issues.
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