As part of its ongoing effort to prevent, prepare for, and respond to the coronavirus pandemic, the U.S. Department of Labor (DOL) issued temporary regulations to implement emergency leave benefits established under the Families First Coronavirus Response Act (FFCRA). These implementing regulations (29 CFR § 826) are available from the DOL at https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf.
While the FFCRA greatly expands emergency leave, including emergency paid sick leave, benefits, employers may elect to exclude certain “health care providers” and “emergency responders” from these provisions of the FFCRA. The following provides a brief summary of those employees who may be exempt.
The DOL is encouraging employers to apply the definition of “health care providers” judiciously for the limited purpose of excluding employees from paid sick leave and/or expanded family and medical leave under sections 3105 and 5102(a) of the FFCRA given the stated objective of preventing the spread of the virus.
In its recently published FAQs, the DOL explained that,
a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, . . . home health care provider, . . . 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.
This definition includes 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.
The DOL further elaborated in its recently published implementing regulations on the employees, entities, or facilities that fall under the definition of “health care provider” as the term is used in sections 3105 and 5102(a) of the FFCRA. The term “health care provider” includes “any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency.” The term also encompasses “workers who are needed to keep hospitals and similar health care facilities well supplied and operational,” as well as “workers who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency.” Presumably, similar health care facilities would include facilities or clinics that offer inpatient, residential, partial hospitalization, and outpatient services/care for mental health and/or psychiatric care, especially when such care is needed due to a COVID-19-related issue.
While the implementing regulations broaden the scope of who may be classified as “health care providers” for the limited purpose of determining whom may be excluded under sections 3105 and 5102(a) of the FFCRA, the definition of “health care provider” set forth in existing regulations promulgated under the Family and Medical Leave Act (FMLA), 29 CFR § 825.102, still applies. See 29 U.S.C. 2611(6) (section 5110(4) of the FFCRA adopting the FMLA definition of “health care providers”). Thus, employers are permitted to exclude individuals in the following positions: doctors of medicine or osteopathy; podiatrists, dentists, clinical psychologists, optometrists, and some chiropractors; nurse practitioners, nurse-midwives, clinical social workers and physician assistants; and any health care provider who can certify (to an employer or the employer’s group health plan benefits manager) of the existence of a serious health condition to substantiate a claim for benefits. These employees must also be authorized to practice, including diagnosing and treating physical and mental health conditions, in the state in which they practice and be performing within the scope of their practice.
Pursuant to the DOL’s implementing regulations, the term “emergency responder” is also being interpreted broadly for the purpose of identifying employees whom an employer may exempt/exclude under sections 3105 and 5102(a) of the FFCRA. The definition of “emergency responder” includes employees who:
- interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19;
- ensure the welfare and safety of our communities and of our Nation;
- have specialized training relevant to emergency response; and
- provide essential services relevant to the American people’s health and wellbeing.
Any such employees who meet these requirements fall under the umbrella of “emergency responders” whom may be excluded from the paid sick leave and expanded family and medical leave benefits under the FFCRA. The definition can be further broadened to include other categories of emergency responders designated as such by the highest state official, as necessary for that state’s response to COVID-19.
For additional information about the FFCRA and what it means for employers and employees, please visit the Employment/Workforce section of McLane Middleton’s Coronavirus Resource Center.