Good Afternoon Association Executives,
Attached please find an updated (09/16/2020) 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."
Despite some ambiguity in the scope of enforcement of the district court's decision, the DOL has applied the decision nationwide.
"Consequently, the DOL has revised the FFCRA regulations, narrowing the definition of "health care provider" to include "only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care."
The revised regulations are effective immediately. Please see the attached memorandum – taking time to note the considerations for retroactivity on page 4.
As always, 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!
Thank you very much. There is a problem with the attachment. Could you please send a new link?
Thanks so much for your interest. For ease, I have provided a link to a web hosted version of the memorandum below!
Thank you, Stephanie. You guys have been terrific and we appreciate how on-top of things you all are.