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Home Health Agencies Seek Narrower Covid-19 Paid Leave Rule

Aug. 13, 2020, 9:26 AM

Health-care workers who have direct contact with patients should be excluded from accessing coronavirus-related paid leave benefits, according to a trade group for the home health industry.

The National Association for Home Care & Hospice wants the Labor Department to issue an emergency rule that would make only certain workers ineligible for the temporary benefits provided through the Families First Coronavirus Response Act.

The group’s call for action follows a federal court ruling that found the department illegally excluded too many health-care workers from receiving those benefits. The court vacated portions of a DOL rule that classified health-care workers as “health care providers” rather than “eligible employees” under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. The rule implemented the Families First legislation.

The home care association, whose members employ some 2.5 million workers, had strongly backed the department’s broad exemptions. It said that without them, health-care providers would be left short-staffed during the pandemic.

Association President William Dombi said he wants the department to appeal the court’s decision and seek a stay of the ruling. In the meantime, he said the department should issue a new, more narrow emergency rule that would make only workers “who have direct contact with patients” ineligible for the paid leave.

An emergency rule wouldn’t require the standard 60-day notice and comment period and would provide home health agencies with some immediate regulatory clarity, Dombi said.

Exemptions Struck Down

The DOL rule defied congressional intent by improperly excluding nearly the entire health-care sector and other employees from up to 12 weeks of paid sick and family leave, the U.S. District Court for the Southern District of New York held Aug. 3. The Labor Department estimated that 9 million health-care workers were ineligible for the benefits under the rule.

The agency said in a statement that it’s “considering all available options.”

The Trump administration “quickly responded to this pandemic and swiftly issued rules implementing the Families First Coronavirus Response Act that provided for new paid leave options and, at the same time, the need for health care providers to assist the sick,” the agency said.

“The balanced approach helped get both relief and care to Americans in need, and those goals remain as we move forward to combat the virus,” it said.

Narrower Rule


The court “found fault with administrative staff being part of the exempted group of workers,” Dombi said. ”If the department issues a new rule that is narrower, then it might pass muster.”

Such a narrow rule would be consistent with the statute, said James A. Paretti Jr., a shareholder at the Littler Mendelson law firm in Washington.

“The department is probably going to issue a new regulation—whether it’s an interim final, or some other method—pretty quickly to sort of address the flaws that the court identified,” he said.

Paretti added that the court decision doesn’t make clear whether it vacated the DOL rule at the state or national level.

To be safe, Dombi said he’s advising his member companies nationwide to “allow these individuals to take the leave that was there” under the pandemic relief law. Tax credits will cover the extra paid leave costs, but employers will have to make arrangements to accommodate for the potential loss of workforce that could result, Dombi said.

Paretti said some employees who took unpaid coronavirus-related medical leave believing they were exempted from the benefit, may be entitled to back pay in light of the court ruling.

“I think there are a lot of folks who are sort of waiting on DOL to give us some additional guidance,” he said.

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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