QUESTION: When the Families First Coronavirus Response Act (FFCRA) first became effective, I chose to exempt my practice from offering this type of leave because health care providers and first responders were given this option. Now I see that I might have to re-evaluate my policy in light of the Department of Labor’s revised guidance. My question is, how do I determine which employees are eligible for FFCRA leave and which ones are not? Even if I can continue to exempt certain positions from FFCRA, should I?
ANSWER: Let me start by reviewing the recent changes to the DOL’s guidance. On September 16, 2020, The U.S. Department of Labor, revised and clarified workers’ rights and employers’ responsibilities under the Families First Coronavirus Response Act, including the definition of “health care provider” for the purposes of exempting a business from complying with paid leave provisions under the Act. As a result of this change, an employer can no longer apply the definition of “health care provider” to their place of business as a whole, but rather, must evaluate the specific job duties of the employee requesting the leave when determining whether or not to provide FFCRA benefits.
In the Frequently Asked Questions section of the DOL’s website, the new guidance defines “health care provider” as:
“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,”
OR
“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.”
The first category is fairly straight-forward and would include the licensed providers in your practice (NPs, PAs, PTs, MDs or DOs). The second category is more ambiguous. It would certainly include your nurses, medical assistants, CNAs, phlebotomists, laboratory and surgical technicians – positions that are clinical in nature and whose primary job functions include diagnosis, treatment and/or prevention. However, it would no longer include the clerical, administrative and ancillary staff on your team. Even though you could make the argument that your scheduler, for example, is ‘integrated with and necessary to the provision of patient care’, they would mostly likely be viewed as similar to those specifically excluded under this revised definition, i.e.: “records managers, billers, IT professionals, HR personnel, consultants” etc.
The real impact of this new definition of “health care provider” is that employers need to evaluate the essential functions of the employee’s job before deciding if the exemption applies – which leads to the second part of your question. Just because you can exclude some employees from utilizing FFCRA leave, should you? You need to weigh to pros and cons of this decision very carefully. What is the likelihood of your employees all needing to take leave at the same time? Unless there has been an exposure incident in the practice, the chances of this are slim. Even if an employee is not eligible for paid FFCRA leave, it doesn’t prevent them from being out of work for a COVID-related reason. Do you want to give an employee an incentive to lie on their health screening form if they knew that admitting to symptoms would cause them to be off (possibly with no pay)? Could you cover an employee’s shift if they needed to be out unexpectedly? Does it make a difference if they were clinical or clerical? If you are required to offer paid FFCRA leave to some employees and could manage offering it to all – knowing that you will recoup the wages paid out in the form of a tax credit – then you should consider just making it available to all, regardless of job duties. The goal is to protect your employees, your patients and your reputation in the community, so while you CAN continue to exempt some positions from FFCRA, it may not make good business sense to do so going forward.
By Jodi Schafer, SPHR, SHRM-SCP