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Employer Alert: Excluding healthcare providers and emergency responders from the mandatory paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”), Emergency Family and Medical Leave Expansion Act (“EFMLEA”), and the Emergency Paid Sick Leave Act (“EPSLA”).

On March 29, 2020, the U.S. Department of Labor (“DOL”) added additional Questions & Answers to its FFCRA guidance that address the healthcare provider and emergency responder leave exceptions under the EFMLEA and EPSLA.

As contained in the original language of the FFCRA, both EFMLEA (childcare leave) and EPSLA (paid sick leave) contain exceptions removing healthcare provider and emergency responder employees from these leave requirements, even if an employer has fewer than 500 employees. Specifically, if an employer, including a public-sector entity, employs a healthcare provider or an emergency responder, the employer is not required to pay such employee paid sick leave or expanded family and medical leave (childcare) on a case-by-case basis.

However, at the time of implementation, the FFCRA did not provide any guidance on who a healthcare provider included and other considerations that need to be made before excepting a healthcare provider under these leave protections.

In short, the definitions of healthcare provider and emergency responder are very broad and meant to be interpreted as such. In fact, a healthcare provider includes almost anyone who touches healthcare services. These employees who meet the definition of healthcare provider or emergency responder are excluded entirely from emergency paid leave, even paid sick leave if they have COVID-19. Reading between the lines, the laws are saying that all healthcare providers and emergency responders need to keep working as much as possible, but everyone else can stay home. The official guidance is as follows.

First, the DOL’s new guidance defines healthcare provider very broadly, but to include all of the following part-time, full-time, or “joint employer employees”:

• Any person who is employed at:
  • A doctor’s office
  • Hospital
  • Healthcare center
  • Healthcare clinic
  • A post-secondary educational institution offering healthcare instruction
  • Medical school
  • Local health department or agency
  • Nursing facility
  • Retirement facility
  • Nursing home
  • Home healthcare provider
  • Any facility that performs laboratory or medical testing
  • Pharmacy
  • Any other similar institution, employer or entity
    
    
• Any person who is employed by an entity that has a contract with any of the above institutions or entities to provide services to the institution/entity or to maintain the operation of the facility.
  
  
• Any person who is employed by an 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.
  
  
• Individuals that are determined by the highest official of a state to be necessary for the state’s response to COVID-19.

Second, the guidance defines an emergency responder as follows:

• An employee (part-time, full-time, or “joint employer employee”) who is necessary for the provision of transport, care, healthcare, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes, but is not limited to:
  • Military/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
  • Persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency
    
    
• Emergency responder also includes individuals (part-time, full-time, or “joint employer employees”) who work for such facilities employing these above listed individuals and whose work is necessary to maintain the operation of the facility. This provision is different from the above under healthcare provider where a determination of necessity is not required, but it should be considered as a best practice.
  
  
• Individuals that are determined by the highest official of a state to be an emergency responder necessary for the state’s response to COVID-19.

For official guidance, see https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

From the DOL’s guidance, it is clear that “healthcare provider” and “emergency responder” are to be interrupted broadly. However, the DOL does warn that employers are to have good judgment and sense when determining who can be excepted to help avoid the spread of COVID-19.

What This Means for Employers
If you have any employees who meet the definitions of “healthcare provider” or “emergency responder,” as these terms are broadly defined, you are not required to pay such employee paid sick leave under EPSLA or expanded family and medical leave under EFMLEA on a case-by-case basis. Therefore, if an employee meeting one of these above definitions requests paid leave, you should determine, on an individual basis, why the employee is being denied as a healthcare provider and/or emergency responder. Although this documentation is not required under the guidance, it is a best practice in the event an employee files a lawsuit or administrative charge seeking backpay under EFMLEA and/or EPSLA.

For questions, please contact Bryan Meek at bmeek@bmdllc.com, or any of the Employment and Labor team members at BMD.