After a Monday ruling regarding the Families First Coronavirus Response Act (FFCRA), many home-based care agencies are no longer considered health care providers, meaning they’ll now be forced to abide by robust federal paid-time-off mandates.

“There’s a tremendous amount of confusion [over this], and I think that a lot of providers do not understand what the impact of this decision is — and what it means,” Angelo Spinola, an attorney and shareholder at law firm Littler Mendelson, said on an emergency webinar addressing the ruling Thursday.

The ruling, which was made by the Southern District of New York, found that the U.S. Department of Labor (DOL) was too broad in its original definition of “health care providers” and, therefore, exempted too many businesses from FFCRA’s rules.

Home-based care providers had lobbied hard for exempt status, citing their essential role keeping people safely at home and out of hospitals.

FFCRA rules order any company with under 500 employees to allow paid sick leave and paid family leave to an employee who has been struck by COVID-19 or has a family member fallen ill. Rules also apply to those who have a child out of school due to the virus.

That required paid time off can reach up to as much as 12 weeks. Home-based care providers — formerly exempt — may now have to not only abide by FFCRA moving forward, but also pay for not doing so in the past.

Now that the DOL’s definition has been voided, the new definition has officially been law since March 1.

“[A great deal of providers] will no longer be able to utilize — at least as of today — the health care provider exemption,” Spinola said. “That’s irrespective of what kind of employees — caregivers or office staff. That’s the major takeaway.”

Right now, it would appear that this ruling would only affect New York and potentially Connecticut, but Spinola says that’s not necessarily the case.

“[Will it affect providers] outside of New York? The answer to that is not crystal clear,” Spinola said. “It’s not 100% certain, but I will tell you that it is most likely that it does. And from our perspective, you should take the position that it does apply to you.”

The current exemption list for businesses includes: doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, midwives, clinical social workers and physician assistants. Additionally, individuals who can certify the existence of a serious health condition under the Family and Medical Leave Act (FMLA).

“Those are the people that would now be defined as health care providers, so that’s not home health. For the most part, that’s not non-medical home care,” Spinola said. “That’s not home health aides, personal attendants, CNAs — none of those positions would qualify as a health care provider. What does that mean? That means that if you as an organization would qualify for FFCRA coverage, you can’t exempt yourself anymore.”

What can be done

The question moving forward is whether anything can be done to rectify the decision in New York.

The two best chances would be an appeal from the U.S. Department of Justice (DOJ) or a revised definition to come about, possibly from the state of New York.

Waiting on an appeal is risky, Spinola said.

A revised definition is more likely, but that would require some help from the DOL.

“Hopefully the DOL will do this, but they’ve got a lot of fish to fry right now, including dealing with unemployment and all these other issues,” Spinola said. “It’s going to take an effort to make that happen. But it is a possibility.”

A revised definition to include more home-based care providers would help, but there would still need to be additional legwork put in to retroactively change the definition so providers wouldn’t be punished from the time from March to August.

If providers don’t abide by the FFCRA and are no longer deemed a health care provider, that could be ruled a minimum wage violation. An employee could file a private suit for back pay and a civil monetary penalty of over $2,000 could be applied, among other fines.

An employee could also file a suit if an agency fails or failed to provide proper family leave.

What providers can do

There’s a lot that providers can do for themselves, William Vail, special counsel at Littler, said on the webinar.

“First off, put a poster in place. Second off, get a policy in place. Third off, have some forms in place,” Vail said. “And most importantly, arbitration agreements — have those in place. Those are great ways to limit any sort of liability that you may have because you didn’t quite exactly do everything right.”

Providers can also tell their employees the situation and explain that they reserve the right to take away the benefits from the FFCRA if something changes.

“Explain that you know that the health care provider exemption may apply, but that you’re choosing to provide benefits,” Spinola said. “And that if the law changes at a later point in time, you reserve the right to revoke the benefits.”