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 here.
The FFCRA includes the Emergency Family and Medical Leave Expansion Act (E-FMLA) and the Emergency Paid Sick Leave Act (the 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 exclusion option is employee-specific, as opposed to being generally applicable to a health care organization. Also, this provision is not self-executing under the statute and appears to require an active step by the employer.
The determination of which employees are “health care providers” must be made on a case-by-case basis. A longstanding Department of Labor (DOL) regulation defines “health care provider” for purposes of the FMLA. That regulation explicitly includes the following (subject to compliance with licensure requirements):
▪ Doctors of medicine or osteopathy;
▪ Clinical psychologists;
▪ Clinical social workers;
▪ Nurse practitioners and
▪ Physician assistants.
The regulation also has a general provision that includes a professional “from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.” Thus, although registered nurses and others are not explicitly included in the definition, this provision allows some additional flexibility, particularly for self-insured employers. For those who are not self-insured, applicable plan terms and the employer’s existing practices will likely control the reach of this additional provision.
No other catch-all provision exists in the regulation, which further states that “health care providers” are “only” those medical professionals listed or within the scope of the certification language quoted above. Accordingly, excluding employees who are not clearly covered could result in liability under the enforcement provisions of both new leave laws.
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.