New York Court Vacates FFCRA Provisions for Home Health Care

BIRMINGHAM, Ala. (August 7, 2020)—A new ruling from a district court in New York may turn over parts of the Families First Coronavirus Response Act (FFCRA) in that state—and could impact home health care providers. 

In April, the United States Department of Labor (DOL) issued a final rule implementing the FFCRA, which was passed in response to the coronavirus pandemic. Shortly after, the state of New York filed suit against the DOL, arguing that several features of the rule exceeded the department’s authority.

On Monday, Aug. 3, 2020, the United States District Court for the Southern District of New York granted partial summary judgment in favor of the State of New York and vacated four aspects of the final rule, specifically: 

• the “work-availability requirement”; 
• he definition of “health care provider” for purposes of the “health care provider or emergency responder” exemption; 
• the requirement that an employer consent in order for an employee to take intermittent leave under the FFCRA; and 
• the requirement that an employee submit documentation to their employer as a pre-condition to leave. 

The court’s ruling could have a significant impact on how FFCRA leave is administered in New York and potentially across the country if other states follow in New York’s footsteps. 

The home health industry, especially, could be hit hard by the ruling’s change to definition of “health care provider,” Angelo Spinola, co-chair of the home health and home care industry group for the law firm Littler, said in a webinar called to explain the decision. 

Under the ruling, only providers listed under the Family and Medical Leave Act, which is limited to “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate)” or “any other person determined by the Secretary to be capable of providing health care services” are eligible for the health care provider exemption under the FFCRA.

The FFCRA orders any company with fewer than 500 employees to allow paid sick leave and paid family leave to an employee who has been struck by COVID-19 or has to care for sick family member. Paid leave is also available to those who must care for a child whose school or childcare facility has closed due to the virus.

The required paid time off can reach up to 12 weeks. And now homecare providers—who up until now seemed to be exempt because they fell into the category of health care providers—may have to not only abide by FFCRA moving forward but may also be liable for not doing so in the past.

The court’s ruling back dates the definition to April 1.

“[A great deal of providers] will no longer be able to utilize—at least as of today—the health care provider exemption,” Spinola said. “That’s irrespective of what kind of employees—caregivers or office staff. That’s the major takeaway.”

Spinola noted that New York likely filed the lawsuit to ensure more people were covered by the FFCRA, and that some states issued their own versions of the law with fewer exemptions. There is a stalemate in Congress over the exemptions, and with unemployment benefits expiring, Spinola theorized, this ruling came down. There is a question whether the Southern District’s ruling will apply nationwide or only to providers in New York.

“The answer to that is not crystal clear,” Spinola said. “It’s not 100% certain, but we recommend that the providers assume this decision is national in scope.”