Home Health & Hospice Week

FFCRA still may apply to some workers, though.

Home health and hospice providers have been waiting to see whether a new Department of Labor ax would fall on their necks during the novel coronavirus emergency.

But home health and hospice agencies have escaped the heavy burden of expanded sick and Family Medical Leave Act requirements in the Families First Coronavirus Response Act, the COVID-19 relief bill enacted March 18. The law requires certain employers to provide up to 80 hours of paid sick leave to employees for COVID-19 reasons, including caring for children not in school. It also requires employers to provide up to 10 weeks of paid, and two weeks unpaid, emergency family and medical leave for caring for their children, the DOL explains on its FFRCA webpage.

The law said “health care providers” would be exempt, but did not specify who or what exactly counted as a health care provider.

Now HHAs and hospices have learned they qualify. In a new 59-question Q&A set, the DOL specifies a list of provider types that are exempt, including a “home health care provider” and “any similar institution, employer, or entity.”

Based on that language, “a home health care agency, hospice, private duty nursing agency or a personal care service agency may choose to exempt their caregivers, home health aides and nurses from receiving federal paid leave,” counsels Indianapolis law firm Gilliland, Maguire, and Harper.

“The reference to ‘any similar institution, employer, or entity’ combined with longstanding DOL classification of individuals providing personal care service in the home as health care workers result in the conclusion that home health agencies, personal care services companies, private duty nursing employers, and hospices are all within DOL’s exemption of a ‘home health care provider,’” concludes the National Association for Home Care & Hospice.

A step further: “The exemption goes be-yond direct service employees and ‘includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility,’” NAHC adds.

But whether the exemption applies to all your office workers is unclear, cautions Gilliland, Maguire, and Harper in an electronic bulletin.“It is possible (and likely) that certain office employees who provide essential support to those direct care employees in the field (or who are providing Telehealth services) may be exempted by you from federal paid leave requirements,” GMH says.“We are in uncharted territory for interpreting how this exemption will apply in the current environment.”

HHAs and hospices should “fully review all aspects of the extended leave standards as there will be instances when they still apply to your workforce,” NAHC advises.

Issue These Notices To Staff

You can’t just read the exemption, breathe a sigh of relief, and be done.“Employers having employees fitting the definitions … need to remember that the health care provider and emergency responder exclusions are discretionary, not automatic,” says attorney Steven Jados with law firm SmithAmundsen in St.Charles, Illinois.

“In order to avoid confusion (and litigation down the road), we recommend that employers that intend to use either exclusion provide a short, simple notice to their employees,” Jados says. The notice should “inform them of the fact that because they are included within the DOL’s definition of ‘health care provider’ … and are essential to the fight against COVID-19, they are not eligible for emergency sick leave or expanded FMLA leave under the FFCRA,” Jados says in online analysis of the regulation.

Plus: The notice “should also advise employees that these exclusions do not affect their eligibility for FMLA leave under the terms of the FMLA in place prior to FFCRA enactment,” Jados adds.

Note: The DOL Q&A set is at www.dol.gov/agencies/whd/pandemic/ffcra-questions.