To be a health care provider or not to be a health care provider as referenced in the Families First Coronavirus Response Act (“FFCRA”) is a question that has generated much uncertainty.

Would the exemption apply only to physicians or would it have a broader scope?

The United States Department of Labor (“DOL”) has just published additional guidance defining health care provider, which is critical to identifying which employees in the health care setting are exempt from the provisions of both the federal paid sick leave law and the expanded Family Medical Leave law.

Under the Act, the Congress permitted employers to exempt “health care providers” and “emergency responders” from being eligible for these benefits.
 
Now, under the most recent DOL guidance, it appears, that for the purpose of this exemption, a health care provider includes “anyone” employed at:
 
  • Any doctor’s office, hospital, health care center or 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 health care provider definition, as stated in the guidance, extends to any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain 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. (The guidance also further clarifies the meaning of first responder).
 
The DOL has asked that employers be “judicious” in applying this exemption so as to minimize the spread of the COVID-19 virus, but the exemption is available for use.
 
The guidance issued by the DOL continues to add to and change our understanding of these new laws. In addition, the DOL regulations when they are issued, may contain modifications of the guidance. It is important to have the most recent information from the DOL when making decisions based on these laws.