“Littler Ask the Experts”

Through our partnership with Littler Mendelson P.C Labor & Employment Law Solutions, Private Duty Home Care at NAHC is excited to share the “Ask the Experts” article. Each week, we will feature a new question, from our members, related to workplace issues and topics that will be answered from our experts and partners at Littler.

This week’s question comes from one of our Private Duty Home Care members and concerns questions about the lingering DOL ruling.

Question. What is going on with the DOL ruling around the FFCRA? How are home care workers being defined?

Answer by Will Vail 


Effective September 16, 2020, the US Department of Labor revised the definition of a “health care provider” under its Families First Coronavirus Response Act (FFCRA) regulations.  These regulations contained other changes as well, which are explained in this article, but this answer will just focus on the health care provider definition.

As a refresher, FFCRA created paid leave for certain COVID-19-related situations for employees of companies with 500 or fewer employees.  But the FFCRA also allowed employers to exempt “health care providers” from being eligible for such leave.  Congress gave the DOL the power to define “health care providers.”  In April, the DOL published its definition.  This arguably included all sorts of home care providers, from home health, hospice and palliative care to even most home care/companion providers.  It also exempted all employees of an agency that employed health care providers, not just the health care providers themselves.  Then, on August 3, the Southern District of New York vacated this definition.  The new regulations were a response to that decision.

The revised definition covers employees who meet the definition of “health care provider” under the Family and Medical Leave Act regulations (doctors and the like) or who are employed to 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.  This definition should cover home health, hospice and palliative direct care workers.  It also will cover some non-medical direct care workers.  But other caregivers (such as companions) may not meet this heightened standard.  The best bet is to consult an attorney knowledgeable in this area if you question whether your employees qualify as health care providers.  Also, unlike the previous version, non-health care provider employees of a covered employer must be offered FFCRA paid leave.  That is, there no longer is a blanket exception for all employees of an employer that employs health care providers.  That means in all likelihood you will need to develop FFCRA policies and forms no matter what – as you likely will employ some non-health care providers.  I would be remiss not to let you know the Littler COVID-19 Response Package includes template forms for this very use.

About Littler

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.

About Will Vail, Special Council

William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations.

Will is a core member of Littler’s healthcare practice group. He has experience litigating across the United States, providing advice and counsel to both legal and non-legal stakeholders, performing due diligence related to mergers and acquisitions, helping start-ups begin operations in a compliant method, winding down operations, conducting management training, and assisting in the integration of new entities into going concerns.

William Vail began his legal career in 2004 as a law clerk to a federal judge sitting in the Western District of Virginia. He then transitioned to private practice in Louisville, Kentucky, for a regional full-service firm and later a national labor and employment boutique firm. At Littler, Will is based in Louisville as well as Atlanta.

*Not licensed to practice law in Georgia