By MARK PETERS and DENISE BURKE
Monday, October 12, 2020 5:18 pm

Many healthcare entities have been issuing "blanket denials" of employee requests for coronavirus related family leave under the (correct) belief that their healthcare entity qualified for an exemption to the new laws. Recent revisions to the regulations will require more individualized determinations.

The Families First Coronavirus Response Act (FFCRA) enacted on March 18, 2020 created additional leave rights for employees in response to the COVID-19 pandemic through two provisions: the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA). Since then, the exact contours of employee rights and employer obligations under the FFCRA have been the subject of considerable debate and disagreement.

On August 3, 2020, a federal district court judge for the Southern District of New York struck down several portions of the DOL temporary EFMLA regulations it determined exceeded the scope of the agency's authority, leaving employers without a clear understanding of what portion of the temporary regulations remained in effect through the end of 2020 when the FFCRA terminates by its terms (unless otherwise renewed).

On September 16, 2020, new revised temporary regulations became effective in response to the New York case that significantly narrows the healthcare provider exemption. Under the FFCRA, employers are not required to provide any type of FFCRA paid leave to "health care providers." That term, however, was left undefined by Congress. Originally, DOL interpreted it expansively to include almost anyone employed by a healthcare employer. The New York federal court ruled that interpretation was too broad.

The new DOL regulation more narrowly defines who is a healthcare provider, providing concrete guidance on who is and is not covered by the exemption. First, the DOL clarified that "it is not enough that an employee works for an entity that provides health care services." The worksite of the employee is also not conclusive, so not all employees of a healthcare entity are covered and conversely, employees need not work at a healthcare entity to be covered.

The definition of "healthcare provider" under FFCRA is broader than the one used for that term under the FMLA. Unlike FMLA regulations, an employee is not required to carry a specific license or certification to meet the definition of "health care provider." Instead, the new test focuses on the work performed by the employee. The employee must be "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." Each of these terms (diagnostic services, preventative services, treatment services, and other integrated services) is specifically defined and include not only traditional healthcare services like patient visits and procedures but also taking and processing samples, performing x-rays or other tests, administering medication, physical therapy, bathing, dressing, feeding, and setting up for procedures. Under this definition, the DOL recognizes four categories of healthcare workers who are covered by the exemption and not eligible for FFCRA leave:

• The first group are those who are included in the definition of "health care provider" under FMLA regulations. This covers "physicians and others who make medical diagnoses," such as dentists, psychologists, optometrists, chiropractors, nurse practitioners, physician assistants and clinical social workers.
• The second group are those who directly provide patient services, such as nurses, nurse assistants, and medical technicians.
• The third group are workers who work under the supervision, order, or direction of or provide direct assistance to employees who are in the first or second group.
• The fourth group are those workers who do not work directly with patients but who are integral to patient care and treatment, such as laboratory technicians who process test results.

• Employees who are employed by a healthcare provider but who do not fit into one of these four categories are presumed not to fall within the exemption and are eligible for FFCRA leave. Under the revised regulation, examples of such employees who are eligible might include "IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers."

The revised regulations also include other changes regarding notice requirements and leave related to school closures.

Denise Burke and Mark Peters are partners at Waller Lansden Dortch & Davis, LLP, in Memphis and can be reached at denise.burke@wallerlaw.com or mark.peters@wallerlaw.com