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August 18, 2020

Expanded Definition of Health Care Workers Creates Large Gaps in Emergency Paid Sick Leave Coverage

Author Affiliations
  • 1Consulting Editor, JAMA Health Forum and JAMA
JAMA Health Forum. 2020;1(8):e201049. doi:10.1001/jamahealthforum.2020.1049

Millions of workers have been excluded from receiving emergency paid sick leave benefits offered under a law passed by Congress in March because the US Labor Department substantially broadened how it defines health care providers and their employees, according to a new report from that department’s Office of the Inspector General (OIG).

The Families First Coronavirus Response Act (FFCRA), which went into effect in April, temporarily provides millions of eligible workers up to 80 hours of paid sick leave for a health issue arising from COVID-19. However, the law excludes workers at private businesses with 500 or more employees, as well as emergency responders and health care workers employed by organizations of any size.

An analysis by the Kaiser Family Foundation (KFF) notes that although the law itself did not define who would be classified as a health care worker, a rule issued by the Department of Labor permitted “many health care providers as well as a wide range of health-related entities to exempt their workers.”

The Labor Department’s rule, issued on April 6, defines “health care provider” to include all employees at physicians’ offices, hospitals, health care centers, clinics, medical schools and other postsecondary institutions offering health care instruction, local health departments, nursing facilities, retirement facilities, home health care providers, laboratories, facilities that offer medical testing, pharmacies, or “any similar institution.”

What this means, the KFF analysis points out, is that these employers are thus “not required to offer emergency paid sick leave to either employees who provide direct patient care or who provide health-related services but do not have direct exposure to patients, such as janitors and food service workers.”

The OIG report, issued August 7, said that the Labor Department’s rule includes an estimate of 9 million health care providers potentially affected by the exemptions, adding that the “estimate provided to the public and other stakeholders could be understated because it does not include all the occupations in the Department’s expanded definition for health care provider.”

According to the KFF analysis, at least 69.4 million workers, or approximately 4 in 10 workers, may be ineligible for emergency paid sick leave, and about 1 in 4 of these individuals who are excluded or exempted from emergency paid leave are health care workers.

“The FFCRA’s emergency paid sick leave provides an economic cushion that could allow health care workers to stay home when they are ill and help curb the spread of the pandemic,” the KFF analysis noted. “However, gaps in the law leave many workers without access, including 17.7 million health care workers.”

The new OIG report also points out that the Labor Department’s expanded definition even exempts employees of companies that contract with entities such as hospitals and clinics to provide services or to maintain the operation of these facilities. This includes employees of companies that produce medical products or are “involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”

On May 15, 2020, the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, a stimulus bill that included provisions to close gaps in access to emergency paid sick leave: it would require private firms with 500 or more employees to offer this benefit and would also remove the exemption for health care providers and emergency responders.

“These changes, if implemented, may make it easier for sick workers to stay home without losing pay and may help protect the others from exposure to COVID-19,” the KFF analysis noted. However, the HEROES Act remains stalled in the Senate.

The New York Attorney General filed a lawsuit against the Department of Labor, challenging the department’s broad definition of “health care provider.” The United States District Court for the Southern District of New York issued its decision on August 3, holding that the department’s definition was overly broad. However, according to an August 11 article in the Washington Post about the OIG report, it is unclear whether the ruling applies only to employers in New York.

As of August 16, 135 298 cases of COVID-19 have been reported among US health care personnel, according to estimates from the Centers for Disease Control and Prevention. These figures are undoubtedly lower than the actual number of COVID-19 cases among health care workers, given that data were collected from 3 957 411 individuals but occupational status was not specified for nearly 80% of them.

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