After a Monday ruling regarding the Families First Coronavirus Response Act (FFCRA), many home-based care agencies are no longer considered health care providers, meaning they’ll now be forced to abide by robust federal paid-time-off mandates.
“There’s a tremendous amount of confusion [over this], and I think that a lot of providers do not understand what the impact of this decision is — and what it means,” Angelo Spinola, an attorney and shareholder at law firm Littler Mendelson, said on an emergency, industry-wide webinar addressing the ruling Thursday.
The ruling, which was made by the Southern District of New York, found that the U.S. Department of Labor (DOL) was too broad in its original definition of “health care providers” and, therefore, exempted too many workers from FFCRA’s paid leave requirements.
Home-based care providers had lobbied hard for exempt status, citing their essential role keeping people safely at home and out of hospitals.
FFCRA rules order any company with under 500 employees to allow paid sick leave and paid family leave to an employee who has been struck by COVID-19 or has to care for a family member fallen ill, among other qualifying conditions. Paid leave is also available to those who must care for a child out of school due to the virus.
That required paid time off can reach up to as much as 12 weeks. Home-based care providers — formerly likely exempt — may now have to not only abide by FFCRA moving forward, but also pay for not doing so in the past.
Now that the DOL’s definition has been vacated, a more narrow definition will generally apply dating back to the FFCRA’s effective date of April 1.
“[A great deal of providers] will no longer be able to utilize — at least as of today — the health care provider exemption,” Spinola said. “That’s irrespective of what kind of employees — caregivers or office staff. That’s the major takeaway.”
Right now, there is an argument that this ruling would only affect New York providers, but Spinola says providers outside of New York should not assume the ruling does not apply to them.
“[Will it affect providers] outside of New York? The answer to that is not crystal clear,” Spinola said. “It’s not 100% certain, but we recommend that the providers assume this decision is national in scope.”
The current exemption list for direct care workers is a position-based test: doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, midwives, clinical social workers and physician assistants. Additionally, the definition includes individuals who can certify the existence of a serious health condition under the Family and Medical Leave Act (FMLA).
“Those are the positions that would now be defined as health care providers, so for the most part, that’s not home health. For the most part, that’s not non-medical home care,” Spinola said. “That’s not home health aides, personal attendants, CNAs — none of those positions would qualify as a health care provider. What does that mean? That means that if you as an organization would qualify for FFCRA coverage, you can’t exempt yourself anymore.”
What can be done
The question moving forward is whether anything can be done to rectify the decision in New York.
The two best chances would be an appeal from the U.S. Department of Justice (DOJ) and — or — for the DOL to issue a new emergency regulation revising the definition to focus on direct care workers only rather than exempting all employees of the organization.
Waiting on an appeal is risky, Spinola said.
A revised definition would provide more immediate relief, but that would require some help from the DOL.
“Hopefully the DOL will do this, but they’ve got a lot of fish to fry right now, including dealing with unemployment and all these other issues,” Spinola said. “It’s going to take an effort from the DOL to take this action, but it is a possibility.”
A revised definition to include the direct care workers of home-based care providers would help moving forward, but there is still the concern of retroactive liability from April to August.
Providers who otherwise qualify under the FFCRA that have utilized the health care provider exemption based on the vacated DOL definition could be targeted for a minimum wage violation. Employees denied leave could file a private suit for back pay plus liquidated double damages and attorney fees.
An employee could also file a suit if an agency fails or failed to provide proper family leave.
What providers can do
There’s a lot that providers can do for themselves, William Vail, special counsel at Littler, said on the webinar.
“First off, put the FFCRA poster in place. Second, get FFCRA policies in place. Third, put leave election forms in place,” Vail said. “And most importantly, arbitration agreements — have those in place. Those are great ways to limit the risk of class action lawsuits from plaintiffs’ lawyers seeking to take advantage of the New York decision.”
Providers can also explain the current uncertainty, as it pertains to the entitlement to FFCRA leave, to their employees. They can explain that they reserve the right to apply the exemption if the law changes again. Many providers are concerned about not having adequate staffing to care for vulnerable clients if much of the direct care workforce is out on family leave.
“Explain that you know that the health care provider exemption may apply, but that you’re choosing to provide benefits,” Spinola said. “And that if the law changes at a later point in time, you reserve the right to change your position.”
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