The Department of Labor has issued guidelines in connection with the FFCRA. The formal regulations will not be published until April 6, 2020. We had expected the DOL to utilize the same definition of “health care provider” as in the previous FMLA. Unfortunately, based on the FAQs that the DOL has published, there appears to be major differences, which do not seem to include mental health providers as an employee that an employer may exclude from FFCRA coverage. We need to see the regulations on the 6th, but, according to the DOL, in answering the question, “Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?”, the DOL advises the following:
“For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is 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, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA. “ (emphasis added)
The full text of the FAQs may be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
We will be on the lookout for the final regulations, currently scheduled for publication on April 6, 2020. As always, if you have any questions regarding your practice, please call us at 732-239-8686.