Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

Department of Labor Adds Q&A to FFCRA Guidance: Provider & Emergency Responder Leave Exceptions

Client Alert
March 30, 2020

Employer Alert: Excluding healthcare providers and emergency responders from the mandatory paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”), Emergency Family and Medical Leave Expansion Act (“EFMLEA”), and the Emergency Paid Sick Leave Act (“EPSLA”).

On March 29, 2020, the U.S. Department of Labor (“DOL”) added additional Questions & Answers to its FFCRA guidance that address the healthcare provider and emergency responder leave exceptions under the EFMLEA and EPSLA.

As contained in the original language of the FFCRA, both EFMLEA (childcare leave) and EPSLA (paid sick leave) contain exceptions removing healthcare provider and emergency responder employees from these leave requirements, even if an employer has fewer than 500 employees. Specifically, if an employer, including a public-sector entity, employs a healthcare provider or an emergency responder, the employer is not required to pay such employee paid sick leave or expanded family and medical leave (childcare) on a case-by-case basis.

However, at the time of implementation, the FFCRA did not provide any guidance on who a healthcare provider included and other considerations that need to be made before excepting a healthcare provider under these leave protections.

In short, the definitions of healthcare provider and emergency responder are very broad and meant to be interpreted as such. In fact, a healthcare provider includes almost anyone who touches healthcare services. These employees who meet the definition of healthcare provider or emergency responder are excluded entirely from emergency paid leave, even paid sick leave if they have COVID-19. Reading between the lines, the laws are saying that all healthcare providers and emergency responders need to keep working as much as possible, but everyone else can stay home. The official guidance is as follows.

First, the DOL’s new guidance defines healthcare provider very broadly, but to include all of the following part-time, full-time, or “joint employer employees”:

  • Any person who is employed at:
    • A doctor’s office
    • Hospital
    • Healthcare center
    • Healthcare clinic
    • A post-secondary educational institution offering healthcare instruction
    • Medical school
    • Local health department or agency
    • Nursing facility
    • Retirement facility
    • Nursing home
    • Home healthcare provider
    • Any facility that performs laboratory or medical testing
    • Pharmacy
    • Any other similar institution, employer or entity

  • Any person who is employed by an entity that has a contract with any of the above institutions or entities to provide services to the institution/entity or to maintain the operation of the facility.

  • Any person who is employed by an 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.

  • Individuals that are determined by the highest official of a state to be necessary for the state’s response to COVID-19.

Second, the guidance defines an emergency responder as follows:

  • An employee (part-time, full-time, or “joint employer employee”) who is necessary for the provision of transport, care, healthcare, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes, but is not limited to:
    • Military/National Guard
    • Law enforcement officers
    • Correctional institution personnel
    • Fire fighters
    • Emergency medical services personnel
    • Physicians
    • Nurses
    • Public health personnel
    • Emergency medical technicians
    • Paramedics
    • Emergency management personnel
    • 911 Operators
    • Public works personnel
    • Persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency

  • Emergency responder also includes individuals (part-time, full-time, or “joint employer employees”) who work for such facilities employing these above listed individuals and whose work is necessary to maintain the operation of the facility. This provision is different from the above under healthcare provider where a determination of necessity is not required, but it should be considered as a best practice.

  • Individuals that are determined by the highest official of a state to be an emergency responder necessary for the state’s response to COVID-19.

For official guidance, see https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

From the DOL’s guidance, it is clear that “healthcare provider” and “emergency responder” are to be interrupted broadly. However, the DOL does warn that employers are to have good judgment and sense when determining who can be excepted to help avoid the spread of COVID-19.

What This Means for Employers
If you have any employees who meet the definitions of “healthcare provider” or “emergency responder,” as these terms are broadly defined, you are not required to pay such employee paid sick leave under EPSLA or expanded family and medical leave under EFMLEA on a case-by-case basis. Therefore, if an employee meeting one of these above definitions requests paid leave, you should determine, on an individual basis, why the employee is being denied as a healthcare provider and/or emergency responder. Although this documentation is not required under the guidance, it is a best practice in the event an employee files a lawsuit or administrative charge seeking backpay under EFMLEA and/or EPSLA.

For questions, please contact Bryan Meek at bmeek@bmdllc.com, or any of the Employment and Labor team members at BMD. 

EPSLADOLDepartment of LaborFFCRAProvidersEmergency RespondersLeave ExceptionsBryan Meek
Client Alert

The Future of the Families First Coronavirus Response Act

February 3, 2021Over the last year we all have had to adjust to the new normal ushered in by the coronavirus pandemic. Schools and daycares closed, businesses transitioned from in-office work to work from home, bars and restaurants have closed their doors...all to slow the spread and try to prevent this pandemic from spiraling out of control. The start of the pandemic was utter pandemonium. Working parents trying to balance both caring for their now at-home children and their livelihood. Businesses trying to decide how to implement leave policies with limited information. Employees determining if they could financially afford to take time off. We were all flying by the seat of our pants trying to adjust to our new normal.Client Alert

Ohio Supreme Court Clarifies Medical Statute of Limitations

February 1, 2021The Ohio Supreme Court issued a decision in late December that clarifies and finalizes the Ohio law regarding the period of time in which patients can assert claims for medical malpractice. The Court was examining the interplay between three different statutes being the statute of limitations, the statute of repose, and the savings statute.Client Alert

Ohio Hospitals and Healthcare Clinics: It’s Time to Revisit Your Billing and Collection Practices

February 1, 2021According to a recent Cuyahoga County case, certain healthcare entities may not be protected from liability when engaging in unfair or deceptive billing acts. This decision is consistent with the growing trend across the country to encourage price transparency and eliminate unfair surprise billing practices by health care organizations. Now is the time for hospitals and other health care organizations to revisit their billing and collection policies and procedures to confirm that they are legally defensible and consistent with best practices.Client Alert

HIPAA Business Associate Agreements: Why These Contracts Matter

January 27, 2021No one loves drafting, reading or negotiating HIPAA Business Associate Agreements (BAAs). Yet many of us need to do so, and some of us do so daily. They are often boring, dense and technical, but BAAs are important from both a legal and a business perspective, and they deserve our attention. Failure to enter a BAA when one is required can constitute a HIPAA violation that results in substantial liability, as demonstrated by certain recent Department of Health & Human Services (HHS) settlements.1 A business associate who makes a disclosure that is not authorized by the applicable BAA or required by law can be subject to civil and, in some cases, criminal penalties. Further, parties are often presented with BAAs that contain onerous one-sided indemnification and other provisions that can be devasting to an organization in the event of a HIPAA breach. The significance of a BAA is often not fully understood by the parties until something goes wrong (e.g., a HIPAA security incident or breach, an Office of Civil Rights (OCR) audit or a fracture in the relationship between the parties) and, at that point, there is limited opportunity to mitigate legal and business risk. Ideally, attention should be given at the commencement of the business associate relationship, when the parties are able, to thoughtfully addressing regulatory requirements, planning and preparing for potential adverse events and appropriately allocating risk among the parties. As with most healthcare regulatory compliance initiatives, a proactive approach with respect to BAAs is preferable. This article provides a broad overview of certain BAA requirements and some practical negotiating tips for the parties involved.Client Alert

“I’m Out Of Here!” Now What?

January 27, 2021We all know that the healthcare industry is experiencing a wave of integration. This trend has been evident for many years. Fewer physicians are willing to assume the legal, financial and other business risks associated with owning their own practices. More and more physicians, including anesthesiologists, are becoming employed by large physician groups, health systems and national providers. This shift necessarily involves not only entry into new employment arrangements but also the termination of existing relationships. And those terminations are often governed by written employment agreements, state and federal healthcare laws and employer benefit plans and other policies and procedures. Before pursuing their next opportunity, physicians should pause for a moment and first attend to the arrangement that they are leaving. Departing physicians need to understand their legal rights and obligations when leaving their current employment relationships in order to avoid unintended consequences and detrimental missteps along the way. Here are a few words of practical advice for physicians contemplating an exit from their current employment arrangements.
Older posts
Newer posts