April 2020 |
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Paid Leave Provisions Under the Families First Coronavirus Response Act: Exception for Employers of “Health Care Providers”

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which became effective on April 1, 2020. Among other things, the FFCRA amends and expands the Family Medical Leave Act and also creates the Emergency Paid Sick Leave Act. The FFCRA establishes two new forms of paid leave that covered employers must provide to certain employees in response to the COVID-19 pandemic – described as “public health emergency leave” and “paid sick time.” The Department of Labor (“DOL”) is tasked with implementing and enforcing these new provisions.

Although the application of the statutory framework for each new paid leave provision is technical, neither framework likely applies to employers in the health care space. Under the FFCRA, “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee” from the new paid leave provisions established by the FFCRA.[1] In this context, “health care provider” is defined broadly by DOL guidance to include:

“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 also includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support 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.” [2]

Given DOL’s expansive definition, the public health emergency leave and paid sick time provisions of the FFCRA will not apply to most employers in the health care space.

DOL has instituted a “Non-Enforcement Period” that will remain in effect until April 17, 2020. DOL will not bring enforcement actions against employers for violations of the act that occurred from March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the FFCRA.[3] This non-enforcement period is soon to expire.

Please note that this blog post is not intended to be a comprehensive summary of the FFCRA and should not be considered as legal advice. If you have questions regarding the new paid leave provisions under FFCRA or are unclear as to how the provisions may apply to you and your business, please do not hesitate to contact the attorneys at Elliott Sauter, PLLC. We have attorneys licensed to practice in federal courts and in New York, New Jersey, and Texas.

[1] See Emergency Paid Sick Leave Act § 5102(a); Emergency Family and Medical Leave Expansion Act § 3105.

[2] See DOL Guidance, Families First Coronavirus Response Act: Questions and Answers, Question Number 56, URL:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#56 (last accessed on March 31, 2020).

[3] See DOL Field Assistance Bulletin, No. 2020-1, URL: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1 (last accessed on April 1, 2020).


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