Since the passage of the Families First Coronavirus Response Act (FFCRA), many healthcare organizations, especially those with a structure that includes a friendly or captive PC model, have struggled to determine whether they may aggregate employees across all affiliated entities to reach the 500-employee threshold that exempts employers from the paid leave requirements of the FFCRA.

However, based on rolling FFCRA guidance recently issued by the Department of Labor (DOL), employers of healthcare providers may exclude such employees captured by the DOL’s definition of healthcare provider from paid leave benefits under the FFCRA.  Because of the broad scope of the definition of healthcare provider recently provided by the DOL, many healthcare organizations and even those entities that provide services to healthcare organizations may be able to exclude all of their employees from paid leave benefits under the FFCRA regardless of whether they meet the 500-employee threshold.

Specifically, the new definition of a healthcare provider is anyone employed at any of the following:

1. Doctor’s office.
2. Hospital.
3. Healthcare center.
4. Clinic.
5. Post-secondary educational institution offering healthcare instruction.
6. Medical school.
7. Local health department or agency.
8. Nursing facility.
9. Retirement facility.
10. Nursing home.
11. Home healthcare provider.
12. Any facility that performs laboratory or medical testing.
13. Pharmacy.
14. Entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility.
15. Entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatments.

The definition also includes any individual determined to be a healthcare provider necessary for a state’s or territory’s response to COVID-19, as determined by the highest official of each such state or territory (including the District of Columbia).

Interestingly, this definition of a healthcare provider is not limited to clinical employees.  Of particular note to organizations structured to include a “friendly” or “captive” PC model is #14 above, which includes individuals employed by a management company contracting with an entity that provides clinical services to provide management and related services.  Based on the updated healthcare provider definition, many healthcare organizations (and related management companies) will have the option of excluding employees from the FFCRA’s paid leave benefits regardless of whether the employer meets the 500-employee threshold.

If you have any questions about the definition of healthcare provider under the FFCRA, please contact the authors.