Late Saturday, March 28, 2020, the United States Department of Labor updated, for the third time in less than a week, its guidance on the implementation of the Families First Coronavirus Response Act (“FFCRA”) paid leave provisions.
The most recent guidance, among other updates, addresses two issues that have previously been unclear and will have broad implications for both small employers and those employers in the health care industry.
As we have said in previous guidance, public agencies and private employers with less than 500 employees will need to comply with the paid leave provisions of FFCRA starting April 1, 2020. However, the law has two sets of exemptions that may apply: “health care providers and emergency responders” and small businesses with less than 50 employees.
Healthcare Provider and Emergency Responder Exemption
The new DOL guidance suggests that the exemption for “health care providers and emergency responders” should be read very broadly, and encourages employers to be “judicious” when using these definitions to help minimize the spread of COVID-19.
According to the DOL, a health care provider is anyone employed at any:
- doctor’s office
- health care center
- 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,
- or any similar institution, employer, or entity, which the DOL says should include any site where medical services are provided that are similar to such institutions.
Pursuant to this definition, any such “health care provider” employee may be exempted from the paid leave under the FFCRA. Importantly, the guidance also suggests that this “health care provider” exemption includes any individual employed by an entity that contracts with any of the above-listed entities to provide services or to maintain the operation of the facility. The definition 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.
Given the guidance, we believe this exemption will be interpreted broadly. For example, we believe that substance use disorder providers such as sober homes, which may not be licensed in a state, may still qualify as health care providers. While such providers are not directly involved in treating the COVID-19 virus, we do expect to see a spike in demand for behavioral health and substance use disorder providers given the stress associated with this current public health emergency. Moreover, this broad definition means that even those employees who work for hospitals in a purely administrative role may be viewed as exempt from the paid leave provisions of the FFCRA.
For any of the employees covered by the definition, employers have the choice of whether to exempt the employees from the FFCRA. Notably, the FFCRA does not require the employers to exempt any of their employees from coverage.
Emergency responders are also given a broad definition to be exempted from the paid leave provisions of the FFCRA. As defined by the DOL, such a 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.”
By way of example, the DOL guidance suggests that the following employees may also be exempted from receiving paid leave benefits:
- military or national guard
- law enforcement officers
- correctional institution personnel
- fire fighters
- emergency medical services personnel
- public health personnel
- emergency medical technicians
- emergency management personnel
- 911 operators
- public works personnel
- 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.
Small Business Exemption Defined
For employers with less than 50 employees, the DOL has also clarified when such a business may be exempt from providing paid leave to its employees under FFCRA.
Employers, including religious or nonprofit organizations, with fewer than 50 employees are exempt from providing leave under the FFCRA due to school or place of care closures or child care provider unavailability for COVID-19 related reasons “when doing so would jeopardize the viability of the small business as a going concern.” This exemption does not relieve such employers of providing paid sick leave for any of the other reasons of the FFCRA.
The DOL has provided a three-part test to consider. A small business may claim this exemption if an authorized officer of the business has determined any of the following:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues, and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services that are needed for the small business to operate at a minimal capacity.
Employers that believe that they may have employees that are exempt from the paid leave provisions should read these exemptions carefully and consult with an attorney where necessary to determine the exemption’s applicability. The DOL’s guidance certainly provides information, but such guidance should also be read in conjunction with a variety of other laws and obligations that employers have. For example, if an employee is taking an unpaid leave under existing FMLA to care for a family member, the exemption may not apply; the exemption only applies to the specified paid leave provisions of the FFCRA.