Home Care Providers Presumably Exempt from New Paid Sick Leave Rules — But Further Clarification Needed

The Department of Labor (DOL) has clarified which health care providers are exempt from new federally mandated paid sick and parental leave rules that were introduced in response to COVID-19. While home health care providers are officially in the clear, many nonmedical home care providers remain uncertain — yet optimistic — about where they stand.

“We’re getting lots of calls,” Matt Wolfe, a partner at North Carolina-based law firm Parker Poe, told Home Health Care News. “One major question that we’ve been seeing a lot of is ‘Are nonmedical home care providers [considered] part of the definition of health care providers — or, more specifically, home health care providers?’” 

The answer to that question is especially important in light of the Families First Coronavirus Response Act (FFCRA), which was signed into law March 18 and is set to go into effect April 1.

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It requires most employers with between 50 and 500 workers to offer certain paid leave benefits to employees, but it allows “health care providers” special exemptions. However, when the law first passed, it was unclear exactly who qualified for those exemptions.

On Saturday, the department released a list of applicable health care providers in an attempt to clear up confusion. While home health care providers were explicitly named, home care agencies were not.

Despite the omission, industry stakeholders have interpreted the DOL guidance to mean both medical and nonmedical home-based care organizations fall into the “home health care provider” category, thus meeting the criteria that allows them to exempt employees from the paid sick leave rules mandated by FFCRA.

The National Association for Home Care & Hospice (NAHC) is advising members as such, with President William A. Dombi calling the guidance “welcome news [in] the home care community.”

“Home care nurses, therapists, personal care aides, home health aides and the many more disciplines of home caregivers provide vital care to over 12 million people every year,” Dombi told HHCN in an email. “With the COVID-19 pandemic, they are needed more than ever as a primary way of keeping people out of increasingly scarce hospital beds.”

Dombi’s interpretation of the guidance is likely correct, given how the DOL has classified home care workers in the past, according to Wolfe and other home-based care lawyers.

Wolfe pointed to the Domestic Service Final Rule — which created overtime and minimum wage protections for home care workers when it went into effect in 2015 — to illustrate his point. On the department’s frequently asked questions page for the rule, the terms “home health” and “home care” are often used interchangeably.

It’s important for home health and home care workers to be exempted from the FFCRA paid leave rules so that they continue to provide essential services to seniors and prevent them from moving into higher modalities of care, according to Angelo Spinola, an attorney and shareholder at San Francisco-based law firm Littler Mendelson. 

Spinola specifically called out the part of FFCRA that requires employers to pay for workers to stay home and care for children, who might be out of school or daycare due to COVID-19. 

“A lot of [home-based care] companies were talking about needing to go out of business if they had to fund all this paid sick leave without any revenue coming in the door because they weren’t caring for their clients,” Spinola told HHCN.

While it’s widely believed home care providers no longer face such a threat, industry stakeholders continue to ask for more explicit guidance before the April 1 rules go into effect.  

“We’re talking to the DOL now to try to get further clarification on exactly what is meant by ‘home health,’” Spinola said. “There are some providers that are concerned that lumping home care and home health together will create other issues, like licensing issues and those related to … wage orders and who is considered a personal attendant and those sorts of things.”

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