Good Afternoon Association Executives,
Attached please find an updated memorandum from NCBH's outside legal counsel regarding the definition of an excepted "health care provider" under the Families First Coronavirus Response Act (FFCRA).
This unprecedented pandemic presents unique challenges when interpreting legislative and regulatory language due to the volatility and speed at which changes are occurring. We hope the attached updated memorandum can provide NCBH members with additional guidance when navigating statutorily required paid sick leave and/or expanded family and medical leave.
The FFCRA, which went into effect on April 1, 2020, directs public employers of any size and private employers with fewer than 500 employees to provide employees with paid sick leave and/or expanded family and medical leave for specified reasons related to COVID-19.
Please note the below, beginning on page 3 of the memorandum:
"On August 3, 2020, a federal judge in New York struck down four key provisions of regulations issued by the DOL to implement the FFCRA. As part of its decision, the district court invalidated the definition of "health care provider" established by the DOL's FFCRA regulations, citing the definition as overly broad. By striking down the definition, the district court limits the FFCRA's exception to provide paid leave for health care providers to the traditional definition of "health care provider" under the FMLA."
The DOL's FMLA regulations define "health care provider" to mean a doctor of medicine or osteopathy authorized in the State to practice medicine or surgery (as appropriate) or "any other person determined by the Secretary of Labor to be capable of providing health care services." Further, these regulations define "any other person" to include podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, physicians assistants, and Christian science practitioners who are authorized to practice in the State and who are performing within the scope of their practice as defined under State law.
Because the scope of enforcement of the court's ruling outside the state of New York is unclear, it is vitally important that NCBH members consult independent legal counsel as they work through their options.
Thanks so much and please let me know if you have any questions!
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Stephanie Katz
Director, Federal Policy and Advocacy
National Council for Behavioral Health
Washington DC
202-684-7457
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