“Health Care Providers” and “Emergency Responders” under the Families First Coronavirus Response Act
Who qualifies as a “Health Care Provider” or “Emergency Responder” under the Families First Coronavirus Response Act?
The Department of Labor has released updated “Questions and Answers” which provides guidance on the Families First Coronavirus Response Act’s (Act) requirements to provide paid sick and family leave to certain employees impacted by the COVID-19 crisis. One unique component of the Act provides that health care providers who are covered by the Act (employers with fewer than 500 employees), may opt out of the paid family and sick leave provisions. However, the Act was less than clear as to which employers would meet the definition of a health care provider. In addition, assuming an employer could meet the definition of a health care provider who could opt out, the Act also left unanswered which employees of that employer may be excluded or whether all employees of a health care provider could be excluded by an employer regardless of the employee’s job position.
The DOL’s updated “Questions and Answers” provides answers to these questions by further defining who is a “health care provider” and “emergency responder.” As detailed below, the DOL has defined “health care provider” very broadly, allowing such employers to opt out of coverage under the Act for “anyone employed” by such an employer. Specifically, the DOL provides the following:
- Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
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.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
- Who is an emergency responder?
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.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
The DOL “encourages employers to be judicious” when determining whether an employer qualifies as a health care provide under the Act, and if so, determining whether to opt out of the paid leave requirements.
As with all aspects of the Act, employers should exercise caution and seek appropriate counsel. Indeed, beyond issues under the Act, the COVID-19 crisis is rife with complex problems that may arise regarding all aspects of the employment relationship including wage and hour issues, accommodations, attendance, FMLA, workplace safety and reductions in force, to name but a few. We are happy to assist our clients and friends work through these intricate legal issues.
The DOL’s full updated Questions and Answers can be found at the link below.