DOL's Implementing Regulations Shed Some Light On Defining 'Health Care Provider' Under the Families First Coronavirus Response Act (FFCRA)

As part of its ongoing effort to prevent, prepare for, and respond to the coronavirus pandemic, the U.S. Department of Labor (DOL) issued temporary regulations to implement emergency leave benefits established under the Families First Coronavirus Response Act (FFCRA). These implementing regulations (29 CFR § 826) are available from the DOL at https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf.

While the FFCRA greatly expands emergency leave, including emergency paid sick leave, benefits, employers may elect to exclude certain "health care providers" and "emergency responders" from these provisions of the FFCRA. The following provides a brief summary of those employees who may be exempt.

The DOL is encouraging employers to apply the definition of "health care providers" judiciously for the limited purpose of excluding employees from paid sick leave and/or expanded family and medical leave under sections 3105 and 5102(a) of the FFCRA given the stated objective of preventing the spread of the virus.

In its recently published FAQs, the DOL explained that,

a health care provider is anyone employed at any doctor's office, hospital, health care center, clinic, . . . home health care provider, . . . 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 the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

The DOL further elaborated in its recently published implementing regulations on the employees, entities, or facilities that fall under the definition of "health care provider" as the term is used in sections 3105 and 5102(a) of the FFCRA. The term "health care provider" includes "any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency." The term also encompasses "workers who are needed to keep hospitals and similar health care facilities well supplied and operational," as well as "workers who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency." Presumably, similar health care facilities would include facilities or clinics that offer inpatient...

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