The Families First Coronavirus Response Act (FFCRA) requires private employers with less than 500 employees to provide paid sick leave and Family Medical Leave Act (FMLA) leave to employees under certain situations.
Embedded within the paid leave provisions of the FFCRA was an exemption for health care providers and emergency responders. Neither term was defined with clarity for purposes of determining who could be excluded from FFCRA coverage. Instead, the law empowered the Secretary of Labor to issue future regulations to provide more guidance on the scope of these exclusions.
Updated guidance from DOL
On Saturday, March 28, 2020, the Department of Labor (DOL) updated their FFCRA Questions and Answers document to address this question head-on. With respect to the definition of health care provider, question 56 explains:
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is 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 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. This also includes anyone employed by any entity that provides 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. This also includes any individual 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.
The definition of emergency responder is likewise addressed in question 57:
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or 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, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
Notably, while the FFCRA borrows the FMLA definition of health care provider for purposes of defining whose advice to self-quarantine can be relied on as a qualifying reason for paid sick leave (see question 55), the definition of health care provider for purposes of excluding someone from FFCRA paid leave is far broader. The DOL’s updated guidance makes clear that any employee of a health care provider—whether he or she is a licensed health care professional, or administrative or technical support staff—may be excluded from the paid leave entitlements of the FFCRA. Moreover, employees of any entity that contracts with a health care provider to provide services or maintain operation of a health care provider’s facility may potentially be excluded from coverage.
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. Indeed, while the DOL recognizes that some health care providers and emergency responders will need to rely on these exemptions, the guidance encourages employers to be judicious when excluding employees from coverage in order to minimize the spread of the virus associated with COVID-19.
Whether or not an employer chooses to rely on the health care provider or emergency responder exemptions, the FFCRA’s notice posting requirements apply to all private employers with less than 500 employees beginning April 1, 2020.