Yesterday, the Department of Labor issued temporary regulations exempting “health care providers” from paid leave and employer-provided paid leave under the Family First Coronavirus Response Act (“FFCRA”).
The original narrow exemption
Articles 3105 and 5102 of the FFCRA provide that an employer “of a health care provider or emergency responder can choose to exclude such enforcement employee ‘requirements for paid sick leave and paid family leave. 29 CFR § 826 (emphasis added). In its initial drafting, the FFCRA defined “health care provider” according to the narrow definition of this term in the Family and Medical Leave Act 1993, which includes only doctors and osteopaths and others specifically. defined by the US Secretary of Labor in the corresponding text. FMLA Regulations. 29 USC. § 2611 (6). These regulations also include other clinicians working in many different fields, such as podiatrists, dentists, psychologists, optometrists, nurse practitioners, nurse midwives, clinical social workers and medical assistants – providers. that can certify the need for an employee on paid leave in the traditional context of FMLA. . 29 CFR § 825.125. But the existing definition of “healthcare provider” under the FMLA and its corresponding regulations do not cover many other equally critical providers (such as professional nurses and physiotherapists) and non-clinical employees (think HR , payroll, safety, health and safety), all of which are necessary to enable employers in the healthcare sector to properly respond to and contain the COVID-19 epidemic.
Temporary regulation significantly expands exemption
The FFCRA, however, gave the Minister of Labor the power to promulgate regulations to exclude other health care providers. The Ministry of Labor has recently exercised this authority to publish non-binding FAQs and temporary regulations and has significantly broadened the “health care provider” exception to essentially cover anyone employed by health care employers, including health workers. non-clinical employees.
For the purpose of certifying the medical conditions or quarantine necessary to determine an employee’s eligibility for emergency paid sick leave or paid family leave, the temporary regulations retain the definition of health care provider used in FMLA. Accordingly, for the purposes of the FFCRA, only healthcare providers as traditionally defined in the FMLA can provide the required certifications.
In contrast, DOL’s temporary regulations adopt a much broader definition of healthcare provider as it applies to employees of the healthcare provider who are not entitled to emergency paid sick leave. The broader definition of a “health care provider” includes any employee employed “in a medical office, hospital, health care center, clinic, post-secondary educational institution providing health care training. , a medical school, local health service or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical tests, pharmacy or any establishment, establishment, place or similar site where medical services are provided which are similar to such establishments.
The exemption also includes emergency responders who are defined as employees who “interact with and assist people with physical and mental health issues, including COVID-19; ensure the well-being and security of our communities; specialized training relevant to emergency response; and provide essential services relevant to the health and well-being of people.
However, the DOL guidelines emphasize that the intention behind the exemption for health care providers is to minimize the spread of COVID-19. Indeed, the FFCRA was voted so that employees are not forced to choose between their job and the protection of their health and the public health necessary to fight against COVID-19. Therefore, the DOL encourages employers to be “smart” when using the exemption for health care providers and emergency responders. Employers should view the health care provider exemption as a balance between protecting their employees while providing essential and necessary services to protect public health from COVID-19.
Therefore, employers in the healthcare sector should consider using the exemption on a case-by-case basis for each employee taking into account the employee’s health and the need for essential services to protect the community from COVID-19. . In addition, the DOL guidelines indicate that the definition of health care provider is subject to “other rules” when regulations are finally published. Therefore, employers should anticipate that the definition of health care provider may change and be further clarified and seek assistance when considering implementing the health care provider exemption.
Employees may still be eligible for COVID-19-related leave under other laws
In addition to the FFCRA’s emergency paid sick leave protections, employers exempt and non-exempt under the FFCRA should remember to consider the protections and regulations reflected outside of this law. Employers should consider vacation and paid leave protections under their own workplace policies. In addition, FFCRA does not prejudge existing state or city sick leave laws that offer greater protection. Therefore, state and local laws, on-site housing ordinances, and ordinances that require exempt or non-exempt employers to provide paid time off still apply. Likewise, employers should always consider the employer’s other obligations under the Americans with Disabilities Act, the Family and Medical Leave Act, the Occupational Safety and Health Administration and all other applicable federal laws. when faced with a request for leave or remote work.
The COVID-19 pandemic and the paid vacation landscape continues to expand and become more complex. Therefore, companies should contact their Seyfarth lawyer for solutions and recommendations on FFCRA compliance and paid vacation requirements on a case-by-case basis.