On August 3, 2020, a Federal District Court in New York struck down certain aspects of the regulations issued by the U.S. Department of Labor (“DOL”) implementing the Families First Coronavirus Response Act (“FFCRA”). The four provisions that were vacated by the court were the “work availability” requirement, the definition of “health care provider,” the employer consent for intermittent leave for childcare reasons requirement, and the documentation requirements employees must satisfy before taking leave. The decision to vacate the DOL’s definition of “health care provider” for purposes of the FFCRA will likely have a major impact on employee leave policies and procedures for employers in the health care industry.

By means of background, the DOL issued temporary regulations implementing the FFCRA on April 1, 2020. The FFCRA offers certain protections and benefits to employees during the COVID-19 public health emergency. Under the FFCRA, employers with fewer than 500 workers are required to provide two weeks of job-protected paid sick leave to employees unable to work due to COVID-19, provided that the employee satisfies one of six qualifying COVID-19-related conditions. The conditions include that the employee:

(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

(2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

(3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

(4) is caring for an individual subject to a quarantine or isolation order by the government or a health care provider;

(5) is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, because of COVID-19; or

(6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Additionally, employers are required to provide up to ten weeks[1] of partially paid leave under the expanded Family and Medical Leave Act (“FLMA”) to employees unable to work because they are caring for a dependent child whose school or place of care is closed or unavailable due to COVID-19 related reasons.

However, employers are able to exclude employees who are health care providers from these leave benefits. The ability to exclude employees from the leave benefits was intended to prevent a shortage of health care providers during the pandemic. Therefore, the way “health care provider” is defined is a hotly contested issue for employers and employees in the healthcare industry.

Instead of adopting the definition as set forth in the FMLA, which defines “health care provider” as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate)” or “any other person determined by the Secretary to be capable of providing health care services,” the final rule set forth a much more expansive definition.[2] The FFCRA regulations define “health care provider” to include:

  • 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, [e]mployer, or entity.

The DOL’s broad definition also included other similar institutions, and individuals employed by an entity contracting with those institutions. According to District Judge J. Paul Oetken of the Southern District of New York, this definition allowed employers to exclude from paid leave benefits employees whose “roles bear no nexus whatsoever to the provision of healthcare services.”  The DOL argued this broad definition was consistent with the purpose of the FFCRA and served to allow employers to exclude from paid leave benefits those employees who are essential to maintaining a healthcare system during the pandemic, such as hospital administrators and lab technicians.

Ultimately, this definition was vacated by the federal district court in the Southern District of New York as overly broad because it excludes paid leave benefits to employees based on the identity of their employer rather than the role or duties of the employee. This decision will have major implications for employers in New York, especially those in the healthcare industry, but it is not yet clear what this means for employers in other states. Employers in the healthcare industry should pay close attention to DOL guidance and updates regarding the FFCRA regulations to determine whether they will need to revisit their employee leave policies and procedures.

The full order is available here.

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[1] The first ten days during which an employee of a covered employer takes emergency leave under the FLMA Expansion Act may be unpaid, but after ten days, employees are entitled to job-protected family leave at two-thirds of their regular wages for another ten weeks. See FFCRA § 3102(b) (adding FMLA § 110(b)(2)).

[2] 29 U.S.C. § 2611(6)(B).