By: Jacqueline Voronov,Esq.
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The FFCRA modified the Family and Medical Leave Act (FMLA) and created a new paid sick leave policy to assist workers who contract COVID-19, are caring for family members with COVID-19, or face other extenuating family circumstances, such as a lack of childcare due to school closures.
Since the FFCRA was signed, employers across the nation have wondered how much of their workforce would be eligible for emergency paid sick leave and expanded FMLA leave. In response, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division rolled out guidance on implementation of the paid leave provisions and published temporary regulations intended to clarify the scope and application of leaves. You can find the full regulations here.
Notably, the paid FMLA and paid sick leave provisions of the FFCRA both say that employers of “health care providers” can decide to not allow their employees to take such paid FMLA and paid sick leave. But these exclusions are not mandatory. Employers who are health care providers and/or emergency responders under the FFCRA may provide FFCRA paid leave to their employees on the same basis as other employers and receive the same refundable tax credits eligible to employers who do so.
The DOL guidance clarifies the definition of “health care provider” and emphasizes that the intent behind the health care provider exemption is to minimize the spread of COVID-19. Therefore, the DOL “encourages employers to be judicious” when using the exemption for health care providers and emergency responders.
Definition of Health Care Providers
The DOL states that excluded health care providers include any of the following persons:
• Employees who work “at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider,”
• Employees who work at “any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
• Employees who work for an entity who “contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.”
• Employees who work for entities providing “medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”
• Employees “that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”
Definition of Emergency Responder
Employers also may exempt emergency responders from the FFCRA leave provisions. The DOL defines emergency responders as an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes, but is not limited to, military or the National Guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes “any individual that the highest official of a state or territory determines is an emergency responder necessary to respond to COVID-19.”
What Should Employers of Health Care Providers Do?
Such employers may choose to issue a blanket exemption of all of their employees, rendering all such employees ineligible to take paid FMLA or paid sick leave under the FFCRA. In recent months, health care facilities- especially nursing homes and long-term care facilities- have reported struggling to contain the spread of COVID-19 among residents, with staff growing increasingly concerned about becoming exposed to the virus themselves due to shortages of personal protective equipment. Over time, the staffing shortage will only become more severe as staff inevitably fall ill and become patients themselves. A blanket exemption will- in theory- offset these increasing shortages in staffing.
Alternatively, employers of health care providers can choose not to take advantage of the FFCRA exemption and permit all employees that are eligible for such leave to take it. But as the number of COVID-19 cases increase and health care workers continue to be taken out of work, experts are concerned the response could leave facilities critically unable to care for patients and residents.
Other employers of health care providers may consider taking the middle ground- using the exemption on a case by case basis for each employee, taking into consideration the employee’s health and the need for essential services to protect the community from COVID-19. The March 28 DOL guidance, as part of the answer to question 38, states that employers of health care providers “are not required to pay such employee paid sick leave or expanded family and medical leave on a case by case basis.”
Unfortunately, the DOL has not clarified what criteria an employer of health care providers can use to determine which employees will receive such paid sick leave “on a case by case basis.” For example, an employer could take the position that it will only provide paid sick leave to an employee diagnosed with COVID-19 and under a doctor’s order to self-quarantine. Employers must, at a minimum, use legal, objective, non-discriminatory criteria to decide which employees will receive such paid leave and which employees will not.
There is no right or wrong decision to make. Rather, these are judgment calls for employers of health care providers to make, taking into account what is best for their patients, residents, and particular needs, how they think their employees will react from a human resources perspective, and what is best for their companies financially.
Employees May Still Be Eligible For COVID-19 Related Leave Under Other Laws
In addition to the FFCRA’s emergency paid sick leave protections, both exempt and non-exempt employers must remember to consider leave and paid time off protections provided by their own workplace policies. Many employers of health care providers have already refused to allow employees to take PTO/vacation days during the pandemic.
Also, the FFCRA does not preempt existing state or city sick leave laws which provide greater protections for employees. Therefore, state and local laws, shelter in place orders, and ordinances that require exempt or non-exempt employers to provide paid leave still apply. This means that even if an employer of health care providers decides that its employees cannot take paid FMLA or sick leave under the FFCRA, the employee may still qualify for unpaid leave under the original FMLA if a doctor or other diagnostic professional certifies that he or she needs such FMLA leave and that employee otherwise satisfies FMLA eligibility requirements.
Many states, such as New Jersey and New York, have comprehensive Earned Sick Leave, Temporary Disability, and Family Leave Insurance laws, which cover all employees- full-time, part-time, temporary and seasonal. Paid sick leave and expanded family leave rights are in addition to any other right or benefit to which the employee is entitled. An employer may not deny an employee paid sick leave or expanded family leave because the employee has already taken another type of leave. In addition, no employer may require, coerce or unduly influence an employee to use another source of paid leave before taking expanded family leave.
Likewise, employers should always consider other employer obligations under the Americans with Disabilities Act, the Occupational Safety and Health Administration, and all other applicable federal law when faced with a request for leave.
Lastly, the DOL guidance states the health care provider definition is subject “to further rulemaking.” Therefore, employers should anticipate that the health care provider definition may change and be further clarified and seek assistance when considering implementing the health care provider exemption.
The COVID-19 pandemic and paid leave landscape continue to expand and grow in complexity. For solutions and recommendations on addressing compliance with the FFCRA and paid leave requirements, contact Hall Booth Smith, P.C’s labor and employment attorneys or any member of our COVID-19 Taskforce.
*HBS publications are intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.