Dive Brief:

• Among healthcare employers impacted by the Families First Coronavirus Response Act (FFCRA), hospitals and residential facilities were more likely than medical practices and home care providers to have excluded employees from taking paid leave offered by the law, according to a survey of 107 healthcare employers by law firm Jackson Lewis.
• Of those employers that excluded employees from FFCRA leave — 31 of the 107 surveyed — 79% exempted all employees from the leave, while 21% excluded only those with direct patient contact. Nearly every employer in this group excluded employees from all leave benefits provided by the FFCRA rather than a portion of the benefits.
• Only 7% of hospital and residential facility respondents said they were allowing employees to use paid time off for absences that result from refusal to come to work over general concerns about COVID-19. But the majority of all respondents said they chose not to terminate the employment of workers who refuse to return to work because of such concerns.

Dive Insight:

The nature of the work done by hospitals and residential facilities may explain why these employers are more likely to exclude employees from taking the FFCRA's paid leave, Jackson Lewis said in its analysis of the results.

"Hospitals and residential facilities are more in the front line and, as such, their primary concern is to ensure their facilities are fully staffed in order to provide vital patient care," the firm noted. "They do not have the luxury of allowing accommodation leaves and related benefits."

Medical practices and home care providers, on the other hand, have seen a reduction in patient demand during the pandemic and may also be experiencing limitations on their ability to provide services and constriction of revenue streams, Jackson Lewis said. Reduced demand and headcount may mean these employers are better positioned to provide the FFCRA's benefits to their employees.

The U.S. Department of Labor (DOL), in its enforcement of the FFCRA, employs two separate definitions of the term "health care provider," the usage of which depends on the legal context. For the "limited purpose" of identifying employees who an employer may exclude from both buckets of the FFCRA's paid leave, DOL’s definition includes medical professionals; those responsible for keeping healthcare facilities supplied and operational; and workers involved in the research, development and production of equipment, drugs, vaccines and similar items needed to combat the disease.

DOL's other definition, used for separate purposes of the FFCRA, such as identifying healthcare providers who may advise an employee to self-quarantine for COVID-19 related reasons, includes "medical professionals who are capable of diagnosing serious health conditions in light of the FMLA's requirement for such healthcare providers to issue certifications regarding the nature and probable duration of serious health conditions."

But this interpretation has not gone without controversy. Congressional Democrats said in an April letter to DOL that the "health care provider" distinction, along with other elements of the agency's FFCRA enforcement, deviate from the text of the statute or do not have a basis in the law's text.