Last month the Southern District of New York ruled that four parts of the FFCRA were invalid. While that ruling was only effective in that judicial district it resulted in the U.S. Department of Labor reviewing the FFCRA. On September 11th the DOL issued a temporary rule revising the FFCRA .
As detailed below, the DOL reaffirmed most of the portions the Court found invalid, but revised the definition of ” health care provider” for the purpose of determining what employees are exempt from the FFCRA.
To determine what employees are exempt from the FFCRA the DOL now defines “health care provider” as those employees defined as health care providers under the FMLA (licensed doctors of medicine or osteopathy, among others) as well as those employees who make medical diagnoses and those employees who are “capable of providing health care services”. The focus is on the duties of these employees , and the employees 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”.
The DOL interprets “health care services” to include relevant services related to patient care, even if not performed by employees with a license, registration or certification.
So who is and is not a health care provider for purposes of the exemption? The DOL gives the following examples:
Health Care Providers– doctors, nurses, nurse assistants, medical technicians, and laboratory technicians.
Not Health Care Providers- IT personnel, human resources, building maintenance/janitorial staff, cooks, food service workers, records managers and staff, billing staff and consultants.
This revision is effective immediately. So if you have a business that provides health care and you have previously been treating all of your employees as exempt under the FFCRA, you will need to reevaluate that position as soon as you can.