By Brock Malcolm, Esq.

On September 11, 2020, the U.S. Department of Labor's Wage and Hour Division (DOL) announced it would be releasing its revisions to previously released regulations governing paid sick leave and the expanded family and medical leave act (eFMLA) under the Families First Coronavirus Response Act (FFCRA). These revised rules come in response to the recent decision of the U.S. District Court for the Southern District of New York, which invalidated key aspects of the original FFCRA regulations. The revised regulations were published today, September 16, 2020, and are effective immediately.

For most health care-related employers, such as hospitals, health centers, and physician practices, the revisions likely will mean a significant change in internal policy. The initial definition of "health care provider," which included anyone employed at "any doctor's office, hospital, health care center, 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," allowed health care-related employers to exclude all their employees from eligibility for paid sick leave or eFMLA.

With these new regulations come a new, narrowed definition of "health care provider." Beginning today, for purposes of employees who may be exempted from paid sick leave or eFMLA, a health care provider is defined as (i) any Employee who is a health care provider under 29 CFR 825.102 and 825.125 (including but not limited to physicians, podiatrists, dentists, nurse practitioners, nurse midwives, clinical social workers, and physician assistants), or; (ii) any other employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

Providing additional guidance, the DOL's regulations make clear that employers may exempt nurses, nurse assistants, medical technicians, and any other persons who directly provide patient services, as well as those other 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." The DOL also provided a list of employees who, although they may work for a health care-related employer, are no longer exemptible, including "IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers."

In light of these changes, health care-related employers will need to reconsider its earlier decisions to exempt all employees from the paid sick leave and eFMLA provisions of the FFCRA. Businesses with fewer than fifty (50) employees who are impacted by this revised exemption may wish to consider whether they qualify for a small business exemption.

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To learn more about these and additional changes to the DOL's FFCRA regulations, see Brock Malcolm's most recent West Virginia Health Care Law blog post. And, if you need help addressing these changes within your business, Bowles Rice LLP has an experienced CARES Act / COVID-19 Response Team ready to provide the advice and guidance you need to avoid making mistakes in this seemingly ever-changing landscape.