Originally, home-based care providers were largely exempt from the mandates tied to the Families First Coronavirus Response Act (FFCRA), including significant paid sick and family leave for workers during the COVID-19 crisis.

Yet in early August, a court ruling by the Southern District of New York found that the U.S. Department of Labor (DOL) had exempted too many types of care providers from the regulations.

That put home-based care providers in a precarious and confusing position, with little guidance on how they should proceed. On Friday, the DOL released initial revisions to the FFCRA based on the ruling made in New York.

Among the revisions: an adjustment to the definition of “health care provider.” The definition now only covers employees who meet the meaning of that term under Family and Medical Leave Act regulations, or those who “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.”

That revision potentially bodes well for home-based care providers, legal experts believe.

“These revised regulations should make it easier for home care agencies with less than 500 employees, which were concerned about the impact of the court’s decision, to preclude family leave for essential health care staff,” Emina Poricanin, the managing attorney of New York-based Poricanin Law, told Home Health Care News.

Specifically, nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive treatment or other integrated services will continue to be exempt from the FFCRA. Employees providing such services under the supervision of — or on behalf of — a clearly exempt health care provider will also be outside of FFCRA’s mandates.

Shareholders from Littler Mendelson, a San Francisco-based law firm, reinforced that in a note published in response to the DOL revisions.

Additionally, employees such as laboratory technicians who process test results necessary to diagnoses and treatments are exempt.

“There certainly is some good news for employers here, as the DOL provides a common-sense application of the work availability rule that enjoys a much stronger chance of surviving legal challenge in the future,” Littler shareholders wrote in the note.

Still, providers should be wary of the possibility that they will continue to not be exempt even with the new guidance from the DOL.

Before the clarification, the Southern District Court ruling meant that agencies with less than 500 employees had to grant paid time off to any employee who is ordered to quarantine or isolate by a public official. The same held true for employees who have been advised to self-quarantine by a health care provider or who have been experiencing COVID-19 symptoms.

Paid sick leave can reach up to two weeks under FFCRA. Paid family leave can reach up to 10 weeks.

Despite that ruling’s origin, it applies to more than just New York providers, Angelo Spinola, an attorney and shareholder at Littler Mendelson, said on a Thursday webinar.

Vicki Hoak — executive director of the Home Care Association of America (HCAOA), a Washington, D.C.-based advocacy group — echoed that idea.

“You might recall that under the first [FFCRA], we were exempt from paid leave,” Hoak said on the same webinar. “We’re hoping that this interim rule will be tied to job classifications rather than the actual health care facility. … And that everyone would be covered that was doing front-line care.”

Although the revisions could save many home care providers, the exact language over which employees are covered is still up in the air, at least to some extent.

“The revised DOL regulations make clear that determination of whether your caregivers may be excluded from FFCRA leave benefits depends on what they are doing and, in some cases, who is supervising them,” Littler Mendelson shareholders pointed out in a separate note shared with HHCN. “But even if some of your employees qualify for the exemption, you should also consider whether you should nevertheless provide some types of paid FFCRA leave to them.”

An example of that would be offering paid leave to caregivers who contract COVID-19, but not for the ones who have quarantined family members.

New York paid sick leave

For home-based care providers in New York, the pressure relating to paid-time-off regulations hasn’t stopped with the FFCRA, which is a federal law. Beginning on Sept. 30, businesses in New York will be required to grant more paid sick leave than ever before.

While the FFCRA is set to expire at the end of 2020, the New York State Paid Sick Leave Law does not have a termination date. Unlike the FFCRA, the New York law would also place the burden completely on the employer.

“In the FFCRA, employers can take a tax credit for the leave payments that they make, whereas with state paid sick leave — and this is a big issue — it’s entirely employer funded,” Poricanin told HHCN. “It’s one of those unfunded mandates that’s going to affect every single employer in New York State across the board.”

There are no such exemptions for health care providers, leaving an additional hurdle in front of home-based care agencies that have historically struggled with maintaining a sufficient labor supply to meet demand for their services. Agencies currently face the added task of luring employees back to the workforce at a time when unemployment benefits remain robust.

The paid sick leave law is not necessarily related to COVID-19.

Instead, it is tied to general sickness or family leave, meaning it will theoretically last for much longer than any COVID-19 legislation.

“It’s tough because they’re already struggling to get people back to work. That’s also given the fact that unemployment is still very generous and, in some cases, offers the caregivers an opportunity to earn a higher income than they would by working,” Poricanin said. “Depending on the size of the employer, it could be 40 hours of paid sick leave or 56 hours, so you could have a caregiver out for over a full week.”

The start date of the new law has snuck up on providers after a long and brutal bout with a COVID-19 outbreak in the state, which was once the world’s epicenter for the virus.

It’s requirements could be a total upheaval of the traditional agency-employee relationship in the state.

“It’s a complete shift in the mindset to now have to provide, pay for and manage that paid time off for this category of workers,” Poricanin said.

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