New Paid Leave Policy Changes Could Spell Trouble for Behavioral Health Providers

COVID-19 has dominated the labor and employment law landscape over the past seven months, as state and federal governments continue to make regulatory changes left and right.

One of the latest modifications should be of particular interest to behavioral health providers, as it tweaks the Families First Coronavirus Response Act (FFCRA) to narrow the definition of a health care provider. The revision could spell change for providers’ paid leave policies going forward.

FFCRA was passed in early April to deal with the pandemic. It created new paid leave rules for private employers with fewer than 500 workers and for certain public employers.

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The law stipulates that non-health care provider employers must under certain scenarios provide up to 80 hours of paid sick leave to COVID-affected employees. It also gives employees access to expanded paid family and medical leave for up to 12 weeks at a rate of two thirds their normal pay rate.

In return, employers are entitled to fully refundable tax credits to cover the costs of providing the paid leave.

Generally, health care providers are exempt from the FFCRA paid leave rules. But recently, the Department of Labor (DOL) narrowed its scope of who counts as a health care provider employee, throwing a bit of a wrench in things for behavioral providers.

“A healthcare provider, at first, was defined as anybody that works for a health care institution,” said Theresa Gallion, a national employment lawyer who has worked with behavioral health organizations since 1988. “But the new language [excludes] IT professionals, building maintenance staff, HR professionals, cooks, food service workers, consultants, billers and people who are not directly involved in the provision of health care services.”

Gallion, who is a senior lawyer and partner at Cornell Smith Mierl Brutocao Burton, made those comments during a presentation at a virtual conference hosted by MHCA, a small, invite-only trade group for behavioral health providers.

The definition change by the DOL was meant to correct a perceived overreach and oversight by lawmakers, Gallion said. Still, the change likely comes as a shock to behavioral health providers, who will now be faced with providing FFCRA leave to certain employees when appropriate.

“It’s been a big jolt to realize we thought we were totally in the clear as healthcare providers, only to have the DOL with very little fanfare and very little notice, say, ‘Wait a minute — that was too broad of a definition. We need to take a look at that,’” Gallion said.

Before approving paid leave for non-health care workers, there are a few things behavioral health providers should keep in mind.

First of all, the US government is paying for these benefits, so it’s up to providers to do their due diligence to ensure leave is necessary.

For example, if kids are 14 or older, the burden is on the employee to explain why they as parents need to stay home to care for an adolescent of that age. Additionally, parents can’t take paid leave just because their children’s school is closed for summer vacation or the holidays. Nor would they be able to take paid leave if they opt to enroll their kids in remote learning while school is open for in-person attendance.

On the other hand, employees would be eligible for paid leave if their child’s school uses a hybrid model in which children were restricted from coming to school certain days of the week.

“We do not want people bamboozling us, and the government expects us to be a good steward of this money, ask questions [and] make alternative work available to people so that we won’t be paying them and then seeking the reimbursement as a tax credit,” Gallion said.

Employers who discover fraudulent claims are entitled to discipline — or even terminate — the workers who made them.

The FFCRA is set to expire on Dec. 31 unless extended.

You can find more information on which employees are eligible for paid sick leave and expanded family and medical leave on the DOL website.

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