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The Health Care Provider Exemption from the FFCRA

By Karuna S. Brunk

We previously outlined the paid leave employee entitlements under the Families First Coronavirus Response Act (FFCRA).  Sections 3105 and 5102 of the FFCRA specifically exempt certain employees who are health care providers or emergency responders from its paid leave and expanded family and medical leave benefits.  The U.S. Department of Labor (DOL) recently published guidance in the form of a Temporary Rule concerning the definition of “health care provider” and “emergency responder.”  Both terms were largely undefined by the FFCRA, and we previously presumed that the DOL would rely on other legal guidance and definitions that limited the health care provider exemption to a select group of medical providers.

The Temporary Rule provides that employers may elect to exclude from eligibility for both paid sick leave and expanded family and medical leave a broad swath of employees, including “any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency.”  The Temporary Rule attempts to strike a balance between allowing workers to take leave when they are sick and not detracting from the health care work necessary to combat COVID-19.

The Temporary Rule also states that the “health care provider” exclusion applies not only to medical professionals but to other workers who are needed to keep hospitals and similar health care facilities “well supplied and operational.”  As such, workers who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19 may be excluded from the FFCRA paid sick leave and expanded family and medical leave provisions.  According to the DOL, this exemption applies to all individuals employed in doctors’ offices, hospitals, health care centers, clinics, anyone providing health care instruction, medical schools, local health departments, nursing facilities, retirement facilities, any facility that performs medical or laboratory testing, pharmacies, and any similar institution.

“Emergency responder” also has a broad definition under the FFCRA and includes “individuals who interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19.”

Notably, the DOL has advised the following:

(1) The health care provider exemption under the FFCRA does not impact employees’ rights to take paid sick leave under other employer policies (accrued sick days, personal days, vacation, or other employer-provided leave).

(2) An employer is not required to exercise the health care provider exclusion – if an employer elects not to exclude employees from leave under the FFCRA, it is entitled to the same tax credits that it would receive if it allowed non-health care provider employees to take leave under the FFCRA.

(3) Employers should be “judicious” when exempting employees from paid leave under the FFCRA due to them being “health care providers” or “emergency responders” – presumably, this means to exercise flexibility, compassion, and empathy when responding to your frontline workers.

We suggest that employers act consistently when applying the FFCRA to their employees so as to avoid employment discrimination claims.  As always, this is an evolving and dynamic area of the law – consult with a qualified attorney as you respond to individual cases.

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