COVID-19 & Your Business: Frequent Questions

Health care providers are exempted under the Act, but what is a “health care provider” under the FFCRA? Can an entity (such as a hospital or physician practice) be a covered entity? Does the term refer to the employer or the employee?  (29 CFR 826.30(c))

The FFCRA permits an employer to exclude an employee who is a “health care provider” from the requirements to provide paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and paid family leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). In other words, while an employer covered by FFCRA must generally grant EPSLA leave and EFMLEA leave to its employees, it can refuse to grant the that paid leave to employees who are health care providers and emergency responders.

The FFCRA does not provide a definition of “health care provider,” but instead references and adopts the definition in the FMLA, which allows the Secretary of Labor to expand the definition. The FFCRA primarily uses “health care provider” in the context of identifying the type of employee to whom an employer may deny EPSLA leave and EFMLEA leave. Apparently, Congress determined that the availability of health care providers is important enough that employees working to provide health care should not get the benefits of FFCRA.

Thus, the new FFCRA regulations generally define “health care provider” to be “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.”

The regulations go on to add to the definition individuals employed by entities that contract with healthcare facilities to provide services or maintain the facilities and anyone employed by any entity that provides medical services, makes medical products, or is involved in making COVID-19 equipment, tests, drugs, etc. The regulations further give state governors the authority to add additional categories of employees to the definition of “health care provider” for that state.

Finally, the FFCRA does not define who is an “emergency responder,” but the regulations define the term to include (but not be limited to) employees who are “necessary for the provision of transport, care, health care, comfort, and nutrition of such patients,” or whose services are otherwise needed to respond to or limit the spread of COVID-19, including military, national guard, law enforcement and correctional officers, fire fighters, paramedics, nurses, 911 operators, and others.

The definition of the term “health care provider” in the context of the set of employees to whom EPSLA leave and EFMLEA leave can be denied should be contrasted with the definition of the same term in the context of the set of persons who can certify an employee’s medical condition under the provisions of the pre-existing Family and Medical Leave Act (FMLA) or advise an employee to self-quarantine due to COVID-19 concerns under EPSLA and EFMLEA.

The FMLA defines a “health care provider” to be a licensed doctor of medicine or osteopathy (an MD or DO), but allows the Secretary of Labor to issue regulations to include others in that definition. The Department of Labor’s FMLA regulations expand the definition “health care provider” to include:

(1) licensed and practicing podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (but only with respect to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist);

(2) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;

(3) Listed Christian Science Practitioners in Boston, Massachusetts;

(4) Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and

(5) A licensed health care provider in a foreign country practicing in accordance with the law of that country.

Under the original FMLA regulations, “health care provider” thus includes MDs and DOs and the other listed occupations, but does not include regular nurses, medical technologists, physical therapists, or other employees working for an employer in the health care field, such as front office workers. The definition also only includes individuals, not entities, and was focused on the employee, not the employer.

But because the original FMLA used the term “health care provider” in the context of defining types of outside experts who would be allowed to certify an employee’s medical condition as one meeting the need for leave under the FMLA, the definition of that term for FMLA purposes generally does not apply to availability-of-leave questions under the FFCRA.

However, the new FFCRA regulations do clarify that where an employer may require proof that the employee is required to self-quarantine, the original FMLA definition of the term “health care provider” remains operable.

Simply put, virtually any employee of any health care entity or any person generally involved in the provision of health care services or the production of health care goods and products may be denied EPSLA leave and EFMLEA leave. However, this does not mean that hospitals, clinics, and other employers are “exempt” because they are healthcare providers; rather, they are just allowed to deny some or all of their employees EPSLA leave and EFMLEA leave.

However, on August 3, 2020, the United States District Court for the Southern District of New York held that the DOL’s definition of “health care provider” was overly broad and invalid. Read more about the decision.

Before denying leave to an employee on the basis of the “health care provider” exemption, employers should consult counsel.”

Last updated August 4

These materials are made available by Jackson Walker for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.