FFCRA, PPE, and Your Private Practice

Relieving Dentists of Some Anxiety in These Unpredictable Times

Published August 18, 2020

As the Pandemic Continues, Doctors Are Understandably Anxious – What Follows Should Bring Some Needed Relief:  We continue hearing from clients and Newsletter subscribers that their practices have rebounded strongly following the government shutdowns.  But, mixed in with this good news is some foreboding about unpredictable things that could throw the practice off track.  One issue is the return to school this coming fall.  With so many schools going back virtually, to what extent will doctors be required to offer family leave benefits to their employees to stay home with younger children?  Another one is what happens if the practice learns that it recently treated a COVID-19 positive patient?  Even when patients pass their screening tests, they could be asymptomatic.  The fear of getting a phone call from the patient (or their parent) that they were indeed COVID-positive when treated must feel a bit like the Sword of Damocles.  The next two items should help relieve some of this anxiety.

We Believe Dentists Are Exempt from the New Sick Leave and Family Medical Leave Rules:  With school years beginning remotely, can employees take leave to stay home and watch their young children?  And, will dentists be required to pay the enhanced family medical leave benefits under the new Families First Coronavirus Response Act (the “FFCRA”)?  We don’t think so.

Among other things, the FFCRA added the so-called “Emergency Family and Medical Leave Expansion Act.”   This part of the FFCRA expands the Family and Medical Leave Act of 1993.  Now, if an employer has fewer than 500 employees and an employee can’t work because a child’s school or daycare facility has been “closed” due to COVID-19, then the employer is required to pay FMLA benefits.  (Under recent DOL guidance, a school that has moved to online learning is considered to be “closed” for EFMLEA purposes).  The FFCRA also created a new “Emergency Paid Sick Leave Act” that likewise applies to employers with fewer than 500 employees.  If the employee is sick with COVID-19 or watching a sick relative, the employer is now required to pay EPSLA benefits.  (The details and amounts of these EFMLEA and EPSLA benefits are covered in the April 1st Newsletter.)

These are frightening concepts for small businesses.  Even though the EFMLEA and EPSLA benefits are to be reimbursed to employers through payroll tax reductions, this still creates a short-term cash flow crunch and may leave the practice dangerously under-staffed.

Here’s the good news:  Based on the language in the regulations to the FFCRA, the DOL’s FAQs and the definition of “health care provider” in the FMLA, a dental office should be able to exclude all of its employees from taking leave under the FFCRA.

First, the regulations to the FFCRA exempt health care providers and emergency first responders.  Under Section 826.30(c)(1)(i) of the regulations to the FFCRA (i.e., rules interpreting the FFCRA), “an employer whose employee is a health care provider or emergency first responder may exclude such employee from the EPSLA’s paid sick leave requirements and/or the EFMLEA’s expanded family and medical leave requirements.”

Second, on the question of “Who is a healthcare provider that may be excluded by their employer from paid sick leave and/or expanded family and medical leave?” the DOL’s FFCRA FAQ #56 says the following:  “For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, a health care provider is anyone employed at any doctor’s office,  . . .”  The use of the word “anyone” here is broad enough to cover both clinical and non-clinical employees.

Third, the conclusion that dental offices are covered is consistent with the definition of health care provider under the FMLA.  The FMLA defines a “health care provider” as:

  1. A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
  2. Any other person determined by the Secretary to be capable of providing health care services. Others “capable of providing health care services” include only podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law . . .

Therefore, there is strong statutory authority for dentists to be able to exclude all of their employees from FFCRA benefits.  We are thrilled that the ADA influenced the Secretary of Labor to issue three more exemptions for businesses with fewer than 50 employees (see the next item below), but for the reasons stated above, we don’t believe that these new exemptions were necessary to protect dentists.

Dentists in New York State are the Exception:  First the good news …  If you are in the 49 states other than New York, then what’s written above should apply to you.  Now, the bad news …  If you are located in New York State, then a recent court ruling has struck down and narrowed the DOL’s broad interpretation of health care provider. (See State of New York v. United States Department of Labor, 20-cv-03020-JPO (S.D.N.Y. August 3, 2020)).   The FMLA definition of health care provider still applies to New York, and dentists are indeed health care providers.  But, under the court ruling, hygienists and dental assistants are not.  Nor are administrative staff.  So, in New York, employees of a dental practice who are not dentists are eligible for FFCRA paid leave unless one of the small employer exceptions applies.

The DOL recently issued three new EFMLEA exemptions for businesses with fewer than 50 employees.  If an employee requests paid leave because their child’s school or day care center is closed (or has gone online), you do not have to pay if you meet one of the following three criteria:

  1. Providing these benefits would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at even a minimal capacity; or
  2. The absence of the employee or employees requesting paid sick leave or family and medical leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or family and medical leave, and these labor or services are needed for the small business to operate at minimal capacity.

We imagine that many New York State practices will meet at least one of these, especially if the practice has a smaller number of employees and depends on everyone showing up for work.

If we were in the other 49 states, again, we don’t think it necessary to have to rely on these exemptions.  (And note: these small employer exemptions apply only to the EFMLEA.  There are no small employer exemptions from the EPSLA).

With Proper PPE, You and Your Team Will Not Have to Miss Work Even If You Learn That A COVID-Positive Patient Had Recently Been In For Treatment:  Whether an asymptomatic healthcare provider (doctor or staff member) should quarantine after exposure to a known positive depends on the level and duration of exposure and what kind of protection the healthcare provider was wearing.  The CDC guidelines for this, which, thankfully, are common-sense, can be found here:  cdc.gov/coronavirus/2019-ncov/hcp/guidance-risk-assesment-hcp.html.    Here is a summary:

If the HCP had “prolonged” “close contact” with a patient, visitor, or HCP “confirmed with COVID-19”, and for PPE, (a) HCP was not wearing a respirator or facemask, (b) HCP was not wearing eye protection if the COVID-19 patient was not wearing a cloth face covering or facemask, or (c) HCP was not wearing all recommended PPE (i.e., gown, gloves, eye protection, respirator) while performing an aerosol-generating procedure, then the work restrictions are onerous – (1) exclusion from work for 14 days after last exposure, (2) advise HCP to monitor themselves for COVID-like symptoms; and (3) any HCP who develops symptoms should immediately seek treatment.

The definitions here are important.  “Prolonged” means exposure of 15 minutes or more.  However, any duration is prolonged if it was an aerosol-generating procedure.  “Close contact” generally means being within six feet of a COVID-19 positive individual.  Finally, “confirmed with COVID-19” means that you had contact with someone during the period that begins two days before their onset of symptoms and ends once they receive their medical clearance.

If the contact with the COVID-19 individual was not prolonged or close, then the level of PPE being used is not at issue, and the HCPs will have no work restrictions.  They should, however, follow recommended infection prevention and control practices, monitoring themselves for COVID-19 symptoms, and if they develop symptoms, they should immediately self-isolate and contact their doctor.

The issue here is whether or not team members who have had exposure to a COVID-positive patient (or other visitor or another team member) have to take time off from work.  The CDC rules do not require a mandatory office shutdown simply because you learn after the fact that there has been some contact with a COVID-positive individual.

Collier & Associates, Inc. will update our blog as the CARES Act progresses. We take pride in continuing to keep our subscribers and website visitors updated on current events during this extraordinary time.

We will work diligently to answer general inquiries via our website if time permits and in a little more detail within our Newsletters. However, if your questions are detailed in nature, please request to set up a conference call for a formal consultation. Thank you.

DISCLOSURE

Collier & Associates, Inc. provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act on this information without seeking advice from professional advisors.

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