CHA News Article

Major Revisions to Federal Leave Law Impact Public Hospitals, Small Private Employers
For chief compliance officers, in-house general counsel & legal staff, human resources professionals, risk managers 

Effective Sept. 16, the health care exemption in the federal Families Coronavirus Response Act (FFCRA) was significantly narrowed. The act, originally passed in March, contains two paid leave provisions and applies to all public employers and private employers with fewer than 500 employees. It includes an opt-out provision for employers of “health care providers.”

The law allowed the Department of Labor to define “health care provider,” and the department did so in a very broad manner that allowed hospitals and other health care providers to opt out all of their employees. After litigation resulted in a ruling that the department overstepped its authority, the department issued revised regulations.   

The revised definition of “health care provider” includes only employees who are employed to provide diagnostic, preventative, treatment, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care, such as laboratory staff.

The regulations expressly exclude “employees who do not provide health care services described above . . . .  even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” Thus, covered hospitals may now opt out of the federal leave law for some employees but not all.   

The revised regulations also provide clarification on other aspects of the law. In updated FAQs (#103), the Department of Labor states that the new definition of health care provider takes effect Sept. 16. Thus, it appears there is no retroactive obligation. This change raises complicated questions for any California hospital or health care employer that opted out of the FFCRA under the earlier definition of health care provider with the adoption of California’s COVID-19 Supplemental Paid Sick Leave law, which goes into effect on Sept. 19.