Hi everyone. This is a one question Q & A. This question has been asked a few times, so I wanted to get the answer out.

1. I was understanding the DOL did not declare employees in the DD industry as “essential” by definition so as of last week there was no denying leave/payment requests under any expansion of the FMLA.  Now that the governor has declared DD essential in the stay at home order, I am hearing discussion there is the assumption that we are essential and do not have to approve/pay any requests.  I, personally, thought the two were separate and distinct and that DOL was reviewing the definition. 

That is correct.  Ohio’s “stay at home” order does not have any automatic effect under the FFCRA.  That federal legislation will be interpreted independent of the state order.  In fact, the FFCRA doesn’t use the word “essential” at all in the paid sick leave section or the expanded FMLA leave section.

Having said that, however, our analysis is that the FFCRA does permit employers of “health care providers” to exclude such employees from coverage.  But, the definition of “health care providers” is taken from the FMLA.  Here is that definition:

Health care provider means:

(1) The Act defines health care provider as:

(i) 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

(ii) Any other person determined by the Secretary to be capable of providing health care services.

(2) Others “capable of providing health care services” include only:

(i) 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;

(ii) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;

(iii) Christian Science Practitioners . . ..

(iv) Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and

(v) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

(3) The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions.

So, the exception is fairly narrow.

The DOL is working on regulations and we may learn more in the future.  Conceivably, those regulations could link various state law distinctions between essential and nonessential to coverage, but that would appear to be a stretch.  Moreover, the DOL could potentially attempt to expand the definition of health care provider to include, for example, nurses.  But, that also seems like a stretch. 

For the time being, here is the most descriptive “official” DOL guidance on the new statute.  Note that it has announced a 30 day “grace period” on DOL enforcement of the statute, but that doesn’t address the possibility of “private” enforcement (i.e., a lawsuit).

Please let me know of any additional questions