WASHINGTON, D.C. (September 15, 2020)—The U.S. Department of Labor recently issued a "Temporary Rule" in response to an Aug. 3, 2020 decision of a federal court in New York that invalidated the department's earlier rulemaking. While there remains a legal issue as to whether the court's ruling is limited to New York, DOL chose to issue a new rule that would be effective prospectively beginning Sept. 11, 2020. 

One particular part of the rule is of great interest to homecare—the definition of "health care provider" for purposes of determining the exemption from the extended sick leave and family medical leave under the Family First Coronavirus Relief Act (FFCRA). Under the earlier definition, it was fairly clear that all sectors of homecare were subject to the exemption, including nurses, therapists and homecare aides. The new rule creates some confusion as to whether all home are aide and personal care services employees are subject to the exemption.

Under the new rule, the exemption is based primarily on the nature of the employee rather than the employer. That new rule includes employees exempt as a "health care provider" under the Family Medical Leave Act. Those employees include physicians, podiatrists, dentists, clinical psychologists, chiropractors, nurse practitioners, physician assistants, clinical social workers, and certain Christian Science practitioners. The FFCRA allows DOL to expand the types of workers subject to exemption. Accordingly, the new rule provides that various types of services that constitute health care can be exempted.

These services involve: 

  • Diagnostic: Includes taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventive: Includes screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment: Includes performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
  • Integrated: Those services that are "integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples."

DOL further identifies exempt employees as: 

  • nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services; 
  • those employees "under the supervision, order, or direction of, or providing direct assistance to" a health care provider; and 
  • employees who are "otherwise integrated into and necessary to the provision of health care services," such as laboratory technicians who process test results necessary to diagnoses and treatment.

Unlike the original rule, the new rule excludes from the exemption employees that work in a number of supportive capacities in health such as administrative staff, billers and records workers. These types of employees were the primary focus of the concern for the New York court. 

While the court ruled that DOL erred in focusing the original rule exclusively on the nature of the employer, the new rule offers reference to employers to help better describe the exempt employees. Among the employer types listed is a "home health care provider." 

Based on an evaluation and analysis of the new rule, it appears quite clear that nursing, therapy and medical social work employees are exempt from the FFCRA extended leave. Further, it also appears likely that home health aides, homecare aides and personal care attendants are exempt provided those employees work under orders from or supervised by a physician, non-physician practitioner, nurse or therapist. That would encompass Medicare and Medicaid plans of care for home health and hospice services. It would also include personal care and home care aide services from many other government funded programs where a physician order or nurse supervision is required. These employees fit the rule standards in two ways: 1.) they are "under the supervision, order, or direction of, or providing direct assistance to" a health care provider; and 2.) they are employees who are "otherwise integrated into and necessary to the provision of health care services." 

Much less clear is whether a homecare aide or personal care attendant not subject to a health care professional's order or supervision qualifies for the exemption. In such circumstances, it appears necessary to demonstrate that the employee is integrated into the provision of health care services overall. While DOL references employees providing feeding and bathing to someone who cannot meet those needs on their own as a potential exempt employee, the rule states that "[t]hese tasks must be integrated and necessary to the provision of patient care, which significantly limits this category."

The National Association for Home Care & Hospice will seek further clarification from DOL on the extent of the exemption in its application to personal care services. However, it appears somewhat risky to apply the exemption broadly to all home care aide and personal care services in the absence of a clarification. Employers that wish to apply the exemption are on safer ground when those services are part of a larger health care plan of treatment. Similarly, it may be safe to apply the exemption if a payer or state licensure requires physician orders or nursing supervision of those services. However, where the services are outside of a formal health care plan of treatment and are acquired without any involvement of physicians, non-physician practitioners, nurses or therapists, it may be prudent to wait until a clarification is obtained. 

Read the rule here.