Type: Law Bulletins
Date: 03/30/2020

Health Care Providers: March 28, 2020 DOL Guidance on Potential Exclusion From Paid Sick and Family Leave For COVID-19

The Families First Coronavirus Response Act, H.R. 6201 (FFCRA) becomes effective on Wednesday, April 1, 2020, and requires employers to provide partial leave to employees who are affected by COVID-19 in specified ways. Taft’s summary of these new leave laws is available here.

The FFCRA includes the Emergency Family and Medical Leave Expansion Act (E-FMLA) and the Emergency Paid Sick Leave Act (E-PSL Act). Both the E-FMLA and the E-PSL allow employers to “exclude” any employee who is a “health care provider or an emergency responder” from the application of the leave provisions. This provision is not self-executing under the statute and appears to require an active step by the employer as to each employee it chooses to exclude. 

Although “health care provider” is a defined term under a longstanding Department of Labor (DOL) regulation, on Saturday, March 28, 2020, DOL issued new guidance that drastically expands this term for purposes of which employees an employer can designate as ineligible for both types of FFCRA paid leave. DOL’s newly announced position is that the exclusion can be applied to “anyone employed 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, any facility that performs laboratory or medical testing, pharmacy or any similar institution, employer or entity.” 

This definition also includes employees of institutions providing services that are “similar” to those of the listed categories, whether on a temporary or permanent basis. 

According to DOL, the reach of this optional extension also covers “any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.”  Thus, any organization that is providing products or services to one of the listed organizations would also be able to exclude any or all of its employees from taking paid sick leave under FFCRA. 

Given the breadth of employees for whom FFCRA paid leave rights can be eliminated altogether, DOL also “encourages employers to be judicious when using this definition to exempt health care providers.” As noted above, these exclusions are not automatic and must be invoked by each employer. 

The DOL’s new guidance is found in full here at question number 56.

The E-PSL also gives the DOL authority to issue regulations that might “exclude certain health care providers” from the covered group on a blanket basis. At present, no such regulations have been issued.

Please contact a member of Taft’s Health Care and Life Sciences group or Taft’s Employment group to discuss the determination of who can be considered a “health care provider or an emergency responder,” as well as whether and how your organization should exclude certain employees from the new federal leave laws. 

Update: On August 3, 2020, a federal court overturned the Department of Labor’s regulation defining the term “health care provider” for purposes of the FFCRA. Click here for additional discussion about this development.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.

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