HR Alert – updated 9/23/2020
As you are aware from our previous Alert dated 08/05/20 (click here to link to that information), the Department of Labor (DOL) was challenged in a lawsuit in New York state regarding several aspects of the FFCRA. One of these aspects was the ability to be exempt from having to comply with the FFCRA due to being a healthcare provider. The DOL lost that case, and we’ve been waiting to see how they respond.
Click here to link to our original Alert information about healthcare provider exemption availability.
On Friday, September 11, 2020, the DOL issued updated FFCRA information in response to this lawsuit. While the DOL covered several aspects challenged in the New York lawsuit, the key revision relates to FFCRA exemptions for healthcare providers.
Here’s the bottom line: the healthcare provider exemption is now position-specific.
What does that mean? That means that while dentists (and other types of doctors) may be considered exempt from the FFCRA as healthcare providers, that does not mean every employee working for the dentist (or other types of doctors) at a dental practice is also exempt. The employee must also be a healthcare provider in order to be exempt.
This most recent update essentially changes the definition of “healthcare provider” from being based on the employer to being based on the employee which means an overall exemption for dentists and dental care providers no longer exists.
Here is more specific information on which position(s) within your practice may be considered a healthcare provider for purposes of being exempt from the FFCRA:
- Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
- Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State and performing within the scope of their practice as defined under State law;
- Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
- Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
- Any other employee who is capable of providing health care services, meaning he or she is employed to provide:
- diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);
- preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);
- treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments);
- or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).
The revised rule further explains that the types of employees falling under this last category include only:
A. Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in 5 above;
B. Employees providing services described in 5 above under the supervision, order, or direction of, or providing direct assistance to, a person described in numbers 1-4 above or A above; and
C. Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment
A person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital of a similar health care facility.
The revised Rule recognizes that individuals who fall under this health care provider exemption may work, among other places, at a doctor’s office, hospital, health care center, clinic, 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 permanent or temporary institution, facility, location, or site where medical services are provided. But the DOL explained that an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider.
If you have not previously exempted yourself from the FFCRA either fully or partially, then no change is necessary. You will continue offering it as before.
If you claimed full exemption from the entire FFCRA based on your status as a healthcare provider, you will need to reconsider that decision, or it may result in liability.
A full exemption due to your own, individual status as a healthcare provider is no longer allowable. You will need to decide whether or not you will then make a determination from one position to another as to their exempt status based on the healthcare provider information above. This may result in some employees being exempt from the FFCRA and others not. For example, your clinical team may be exempt while your administration people may not.
As before, if you want clarification, we would suggest calling your local DOL office and speaking with them since they are the direct source of information, as well as the office responsible for investigating a claim against you if it occurs.
- Call the Wage & Hour Division of the Department of Labor at: (866) 487-9243
- When prompted, press 1 for Wage & Hour Division
- When prompted, press 0 to speak with a representative
- Enter your zip code (this automatically routes you to the regional office for your state)
- Press 1 if entered correctly
- Press 2 to speak with representative
- Once a representative on the line, tell the person how many employees you have and your type of practice
- Ask whether you are exempt from the FFCRA, and ask specifically about your various types of employees
- Administrative employees
- Clinical employees who do not provide direct patient care
- Clinical employees who do provide direct patient care
- Associate dentists
- To cover yourself, document the individual’s name that you speak with, as well as the date and time. If you can get the person to put the information in writing, via email, do that too.
Once you have made your determination, you will need to inform your staff of the decision as well as modify your policy manual. As a required policy, you will need to contact us to reinstate the FFCRA policy as well as make other adjustments, if necessary.
For policy changes, please email us at firstname.lastname@example.org with your request.
If you claimed partial exemption from the FFCRA and it was just the 12 weeks of Expanded Family and Medical Leave (i.e. reason #5), you can no longer base this decision on the healthcare provider exemption and apply it to all employees. You may elect to exempt some staff based on their positions as healthcare providers or due to the “Small Business Exemption.”
The Small Business Exemption still exists for certain businesses with less than 50 employees. Note: this exemption only applies to the 12 weeks of Expanded Family and Medical Leave (reason #5). This is not a blanket and permanent exemption for all employees. Each request for Expanded Family and Medical Leave must be reviewed on a case-by-case basis to determine exemption.
An exemption may exist if:
- The provision of expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
If you determine you meet the above criteria for certain employees, you will need to document how you meet this exemption for your records. This is to ensure you have what you need to defend your position if liability occurs as a result of your determination.
To reinstate this policy or to make other adjustments, please email us at email@example.com with your request.