The Health Care Provider Exemption to Emergency Paid Sick Leave in the Families First Coronavirus Act - Are you Covered?

Yesterday, the Department of Labor issued temporary regulations regarding the “health care provider” exemption to employer-provided paid time off and paid leave under the Families First Coronavirus Response Act (“FFCRA”).

The Original Narrow Exemption

Sections 3105 and 5102 of FFCRA provide that an employer of “a health care provider or an emergency responder may elect to exclude such employee from the application” of the paid sick leave and paid family leave requirements. 29 CFR § 826 (emphasis added).  As initially drafted, the FFCRA defined “health care provider” consistent with the narrow definition of that term under the Family and Medical Leave Act of 1993,  which includes only medical and osteopathic doctors and others specifically defined by the US Secretary of Labor in the corresponding FMLA regulations. 29 USC. § 2611(6).  Those regulations also include other clinicians working in numerous different fields, such as podiatrists, dentists, psychologists, optometrists, nurse practitioners, nurse midwives, clinical social workers and physician assistants—providers who can certify an employee’s need for paid leave under the traditional FMLA context. 29 CFR § 825.125. But the existing definition of “health care provider” under FMLA and its corresponding regulations do not cover numerous other, equally critical providers (such as vocational nurses and physical therapists) and non-clinical employees (think HR, payroll, security, health and safety), all of whom are necessary to allow healthcare employers to properly respond to and contain the COVID-19 outbreak.

The Temporary Regulations Significantly Expand The Exemption

The FFCRA, however, gave the Secretary of Labor authority to promulgate regulations to exclude other or additional health care providers. The Department of Labor recently exercised this authority to issue non-binding FAQs and temporary regulations and has significantly broadened the “health care provider” exception to essentially cover anyone employed by healthcare employers, including non-clinical employees.

For purposes of certifying the medical condition(s) or quarantine necessary to determine an employee’s eligibility for emergency paid sick or paid family leave, the temporary regulations keep the definition of health care provider used in the FMLA. Accordingly, for purposes of the FFCRA, only health care providers as traditionally defined in the FMLA can provide the required certifications.

In contrast, the DOL’s temporary regulations adopt a much broader definition of health care provider as it applies to the health care provider employees who are not entitled to emergency paid sick leave. The broader definition of a “health care provider” includes any employee 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, facility, location or site where medical services provided, that are similar to such institutions.”

The exemption also includes emergency responders who are defined as employees who “interact with and aid individuals with physical and mental health issues, including COVID-19; ensure the welfare and safety of our communities; specialized training relevant to emergency response; and provide essential services relevant to people’s health and well-being.”

However, the DOL guidance emphasizes that the intent behind the health care provider exemption is to minimize the spread of COVID-19. Indeed, the FFCRA was passed so that employees are not forced to choose between their jobs and protecting their health and the public health necessary to combat COVID-19. Therefore, the DOL encourages employers to be “judicious” when using the exemption for health care providers and emergency responders. Employers should view the health care provider exemption as a balancing act between protecting their employees while at the same time providing essential and necessary services needed to protect public health from COVID-19.

Therefore, health care employers should consider using the exemption on a case by case basis for each employee taking into consideration the employee’s health and the need for essential services to protect the community from COVID-19. Additionally, the DOL guidance states the health care provider definition is subject “to further rulemaking” when the regulations are eventually published. Therefore, employers should anticipate that the health care provider definition may change and be further clarified and seek assistance when considering implementing the health care provider exemption.

Employees May Still Be Eligible For COVID-19 Related Leave Under Other Laws

In addition to the FFCRA’s emergency paid sick leave protections, both exempt and non-exempt employers under the FFCRA must remember to consider protections and regulations reflected outside of this law. Employers should consider leave and paid time off protections provided by their own workplace policies. Also, the FFCRA does not preempt existing state or city sick leave laws which provide greater protection. Therefore, state and local laws, shelter in place orders, and ordinances that require exempt or non-exempt employers to provide paid leave still apply. Likewise, employers should always consider other employer obligations under the Americans with Disabilities Act, the Family and Medical Leave Act, the Occupational Safety and Health Administration, and all other applicable federal law when faced with a request for leave or remote work. 

The COVID-19 pandemic and paid leave landscape continue to expand and grow in complexity.  Therefore, companies should reach out to their Seyfarth attorney for solutions and recommendations on addressing compliance with the FFCRA and paid leave requirements on a case by case basis.

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