Does FFCRA's 'health care provider' exemption exclude dentists? New questions arise

Soon after the federal Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act took effect April 1, CDA received clarification from contacts within the Department of Labor that dentists and their employees were not included in the “health care provider” exemption as defined under the act, which is part of the Families First Coronavirus Response Act. According to that clarification, the exemption was intended to apply to health care providers who were providing care for COVID patients and, therefore, dentists were not included in the definition.

Now, at least one federal court has struck down the DOL’s definition of “health care provider,” causing more confusion and uncertainty for some employers in the health care industry. For example, the decision creates a situation where dentists and their licensed staff would be exempt as health care providers, but other support staff would be eligible to receive the leave benefits under FFCRA. That lack of clarity could create a legal risk for employers to provide leave to some but not all employees.

The FFCRA reimburses private employers who have fewer than 500 employees with tax credits for 100% of the wages paid when they provide the paid leave to eligible employees who are required to take the leave for qualifying reasons related to COVID-19.

But there are two exemptions: one for businesses with fewer than 50 employees (see CDA article published April 3 for details) and a second for health care providers.

A recent ruling by the Southern District of New York found that the DOL’s original definition of health care provider was too broad and exempted too many workers from FFCRA’s paid leave requirements. At this time, it is still unclear if the ruling applies nationwide or only applies to providers in New York, and the DOL has not yet issued any clarifying statements or regulatory interpretations. 

The court ruling raises new questions about the definition of a health care provider, and representatives for the DOL reportedly have verbally shared inconsistent interpretations of the definition, adding to the confusion. CDA is continuing to seek further clarification from the DOL on whether dentists are, in fact, included in the definition of health care provider for the purpose of meeting the second exemption.

Until that clarification is made, CDA strongly advises that dentists who wish to exempt themselves as health care providers or who have been excluding employees from the FFCRA under the DOL’s definition of health care provider should consult with legal counsel to determine how the decision to claim the exemption affects their practice. The penalties for noncompliance can be quite costly.

Employers are encouraged to consider that compliance with the emergency paid sick leave under the FFCRA allows employees to stay away from the workplace when experiencing symptoms consistent with COVID-19 or, if they have received a positive test result, to seek a diagnosis or to care for themselves or a family member when ill without a loss in wages. 

Read the CDA article published in April for more information about the small-business exemption and the documentation required for employer reimbursement or go directly to the DOL’s FFCRA page containing fact sheets, Q&A, an eligibility tool and required posters.

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