When the Families First Coronavirus Response Act (FFCRA) was signed into law in March, home-based care providers were exempt from granting their workers a handful of benefits related to the coronavirus, such as extensive paid sick leave and paid time off.
But on Monday, the federal court for the Southern District of New York ruled that the U.S. Department of Labor (DOL) was overbroad in how it defined the exemption for employees of “health care providers.” The U.S. DOL was responsible for defining what types of providers and caregivers were exempt from FFCRA’s coverage as employees of health care providers.
The ruling was in response to a lawsuit from the New York Attorney General after the regulations were set by the DOL.
A narrowing of the health care provider exemption could mean serious trouble for home-based care providers that were operating under the assumption they would be exempt from the FFCRA’s requirements. While that’s especially true for those in New York and Connecticut, the ruling could set a precedent with broader implications moving forward.
“This turns everything on its head, because the providers that I have worked with over the last few months have been relying on these regulations in structuring their leave policies and deciding who can take paid, job-protected leave and who cannot,” Emina Poricanin, the managing attorney of New York-based Poricanin Law, told Home Health Care News.
The FFCRA officially went into law on April 1.
Broadly, the ruling could mean that agencies with less than 500 employees will need to grant paid time off to any employee who is ordered to quarantine or isolate by a public official. The same holds true for employees who have been advised to self-quarantine by a health care provider or who have been experiencing COVID-19 symptoms.
It also could mean up to 12 weeks of paid time off for any employee caring for a child experiencing a school closure.
The ruling is effective immediately, according to Poricanin.
“The DOL regulations effectively said that employees of health care providers would be excluded — and also that any employee, no matter whether they perform health care duties or not, will be deemed exempt from the FFCRA,” Poricanin said.
That resulted in many employees from home-based care agencies — on the front lines or otherwise — not being granted paid time off under the FFCRA.
It is still not clear how the law will be interpreted, particularly for employees who were furloughed or not granted paid time off from April 1 until Monday.
“Based on this decision, home care providers will arguably have to provide their office employees who need child care accommodations with 12 weeks of paid time off, and that’s going to create a huge problem for providers,” Poricanin said. “Then there’s the question over what do we do about the retroactive period — that time from when the regulations took effect [until now].”
Providers will be operating in even murkier waters until they get further clarification.
“There’s a possibility that employees could claim that they’re owed paid time off for retroactive periods when they were ‘forced’ to take a furlough due to child care concerns that were caused by the coronavirus,” Poricanin said.
Poricanin said she would not be surprised if the DOL appealed the decision.
Until then, providers will have to make hard decisions over how they’re going to operate – and how they will address requests for time off that, arguably, qualify for paid time off under the FFCRA.
“There will have to be some strategic decisions made by providers who are bound by this court decision about how to apply this in their workplace, depending on their state, their size and what services they’re providing, whether that’s companion care, home care or skilled home care,” Poricanin said.