Home Health & Hospice Week

Ruling may affect any furloughed employees.

Home care providers that have relied on the Department of Labor’s definition of “health care provider” for Families First Coronavirus Response Act (FFCRA) purposes may need to go back to the drawing board — and provide broader paid leave options to their workers.

On Aug. 3, in response to a legal challenge by the state of New York, a New York federal district judge struck down portions of the DOL final rule providing FFCRA guidance, including the rule’s “health care provider” definition (see Eli’s HCW, Vol. XXIX, No. 29).

Good news: “The FFCRA exemption available to employers with fewer than 50 employees was not challenged and … remains intact,” points out Indianapolis law firm Gilliland, Maguire, and Harper in its electronic newsletter.

Bad news: “The District Court’s ruling … leaves a number of … critical issues uncertain for home health care employers,” Gilliland says. “For example, the ruling … may obligate an employer who used the health care provider exemption to pay retroactive paid leave for eligible employees between April 1, 2020 and August 3, 2020,” the firm warns.

Home care providers are smack in the middle of a gray area. “Risks for potential penalties for good faith reliance on DOL’s Final Rule are unlikely but also potentially uncertain at this time, and may depend on future rulings and time frames for compliance set by DOL,” Gilliland says.

What’s next: “It is unclear whether the USDOL will appeal this decision or whether it will issue new rules,” says attorney Sami Asaad with Ford Harrison. “If the USDOL appeals the decision, it will likely request that its rules remain in effect pending the appeal. It will be up to the courts to decide whether to do so,” Asaad says in online analysis.

“In the meantime, employers who relied on the USDOL’s rules during pandemic-related shutdowns and reductions in force should consider the impact of this decision on requests by employees (including furloughed employees) for FFCRA leave,” Asaad recommends. “Also, employers in the health care industry must consider the impact of this decision on their application of the 'health care provider’ exemption contained in the FFCRA.”

Agencies with fewer than 50 employees “will want to ensure strict adherence to the requirements of the small business exemption to alleviate some of the risk and uncertainty created by the Court’s ruling,” Gilliland counsels.

Bottom line: “Agencies and organizations will need to make difficult decisions in response to the Court’s decision vacating portions of the DOL’s Final Rule implementing the FFCRA, none of which will be free of cost or free of risk,” Gilliland says. “The issues, uncertainties, and risks, are continuing to develop,” the firm continues. “Agencies and organizations should follow and monitor developments closely.”