The Department of Labor (“DOL)” recently issued guidance addressing the exclusion of health care providers and emergency responders from the benefits of the Families First Coronavirus Response Act (“FFCRA”) and an exemption for small business.
Health Care Providers and Emergency Responders
An employer may exclude health care providers and emergency responders from: (a) family and medical leave under the Emergency Family and Medical Leave Expansion Act; and (b) paid sick leave under the Emergency Paid Sick Leave Act.
The DOL defines a health care provider as “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.” To minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”
The DOL defines an emergency responder as “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.” To minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.”
Accordingly, employers may exclude health care providers and emergency responders from family and medical leave under the Emergency Family and Medical Leave Expansion Act and/or paid sick leave under the Emergency Paid Sick Leave Act.
Small Business Exemption
The DOL guidance provides that an employer with fewer than 50 employees is exempt from the provisions of the Act if an authorized officer of the business has determined that at least one of the following situations applies:
- 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 provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
It does not appear that a small business needs to obtain this exemption from the DOL or another agency and based on the current guidance it appears that a small business may make this determination on its own.
Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19. If you have any questions, please contact us.
This update is provided for informational purposes only and should not be considered legal advice