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Updated DOL guidance clarifies who is a ‘health care provider,’ other aspects of FFCRA

By Pamela Wolf, J.D.

The guidance also clarifies the scope of the small business exemption, among other things.

The DOL’s Wage and Hour Division (WHD) continues to publish a steady stream of guidance aimed at providing updated information to employees and employers about the protections and relief available under the Families First Coronavirus Response Act (FFCRA) when it takes effect on April 1, 2020.

Signed into law by President Trump on March 18, the comprehensive legislation expands the FMLA to include public emergency family and medical leave, and it provides emergency unemployment insurance, emergency paid sick leave, and tax credits to employers for paid sick and paid family and medical leave, among other relief. It was the first round of legislative relief for employers and employees alike, quickly followed by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law by the President on March 27.

Updated guidance. The updated guidance adds to earlier guidance posted by the WHD, particularly, questions and answers addressing critical issues such as the definition of a “health care provider,” and the scope of the small business exemption for purposes of exclusion from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, as well as whether public sector employees may take paid family and medical leave.

The WHD has also posted two recently released posters and fact sheets in Spanish on its COVID-19 website.

Who is a “health care provider?” This question matters for two reasons: (1) health care providers may advise individuals to self-quarantine due to concerns related to COVID-19—a qualifying reason for paid sick leave; and (2) an employer may exclude a health care provider from paid sick leave and/or expanded family and medical leave.

Self-quarantine advice. In the first circumstance, the term “health care provider” “means a “licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA,” the WHD explained.

Exclusion from paid sick leave and/or expanded FMLA. In the second circumstance, 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,” according to the WHD.

Notably, this definition includes any permanent contractsor temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

Also included in this definition is anybody employed by an entity that contracts with any of these institutions, employers, or entities to provide services or to maintain the operation of the facility.

Further included is 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—including 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.

Be judicious! In an effort to minimize the spread of the coronavirus, the DOL is encouraging employers to be judicious when using this definition to exempt health care providers from the FFCRA.

Small business exclusions. The FFCRA includes a small business exemption from emergency paid sick leave and emergency family and medical leave requirements when certain conditions are met. An employer, including a religious or nonprofit organization, with fewer than 50 employees (a small business) is exempt from providing (1) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, and (2) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.

“Going concern.” The exemption may be claimed when an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Full- and part-time employees. The updated guidance also clarifies who is considered a full-time versus part-time employee and for what purposes under the FFCRA.

For Emergency Paid Sick Leave Act purposes, a full-time employee is one who is normally scheduled to work 40 or more hours per week, while a part-time employee is one who is normally scheduled to work fewer than 40 hours per week.

In contrast, the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

Available guidance. This latest guidance, released on March 28, adds to a growing list of compliance assistance materials published by WHD, including the English-language versions of a Fact Sheet for Employees, a Fact Sheet for Employers, and two new required posters—one for federal workers and one for all other employees, as well as Questions and Answers about posting requirements, and a Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy.

“The response to the guidance we’ve published so far has illustrated the critical need that workers and employers have for this important information,” WHD Administrator Cheryl Stanton said in a statement. “This round includes some of the most common questions we are receiving and will help ensure that the American workforce has all the tools and information needed in these very trying times. We encourage everyone to check the Wage and Hour Division website frequently, as we continue to add guidance to help everyone understand what they are entitled to as we prepare for these vital new benefits to go into effect on April 1, 2020.”