Clarification on What is a “Healthcare Provider” in the FFCRA
on March 30, 2020
In phase 2 of the government’s COVID-19 relief package, passed nearly 2 weeks ago and known as the Families First Coronavirus Response Act (FFCRA), there was language exempting certain business types from being required to offer expanded medical leave and sick leave to their employees. The 2 exemptions were defined as businesses that 1) employed fewer than 50 employees (and the long term viability of their business would be jeopardized by having employees not working) or 2) were classified as “healthcare providers.” That second exemption type left more questions than answers and had a lot of people asking, “Who is a healthcare provider?” Or more specifically, “Am I, as a DMEPOS supplier or manufacturer, considered to be a healthcare provider for the purposes of this new Act?”
VGM hosted a webinar last week and highlighted many of the key features of this particular bill. During that webinar, we mentioned that we had reached out to the offices of the Secretary/Department of Labor to ask for clarification on what business types were considered healthcare providers. At the time of the webinar, we had not received any clarification from the Department of Labor. Since that time, however, the Secretary/Dept. of Labor has issued additional guidance about who qualifies as a “healthcare provider” for purposes of exempting their workers from sick leave/medical leave under the Families First Coronavirus Response Act. The additional clarification response we received read as follows:
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
The information above, along with many other FAQs and answers that address many common business scenarios, can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Based on this clarification, while DME providers are still not called out specifically, we think you could easily argue that DME providers and manufacturers can be considered exempt, but you may want to consult an attorney before making your final decision as to whether you will consider your business and employees exempt from eligibility for expanded medical/sick leave under FFCRA. The question VGM initially posed to the Dept. of Labor did ask for clarification on DME providers specifically, but the answer we received from them was more general in nature.