Much has been written the past few days about the Families First Coronavirus Response Act (“FFCRA” or the “Act”). As we have reported, the Act provides two specific benefits for employees of companies with less than 500 employees. First, it provides paid sick leave of up to ten (10) days in addition to whatever paid sick leave states may have already granted by statute. Second, it provides for paid family leave but only under very limited circumstances. There is an exemption, however, for “health care providers” and emergency responders. The Mandelbaum Barrett Coronavirus Task Force has fielded many questions since our Webinars this past week concerning the breadth of the exemption and how it works.
It is clear the exemption was included in the law to keep health care providers and emergency responders at work and on the front lines to fight the pandemic. Obviously, we don’t want to force those providers who have the virus to expose others. However, the law did not want to give health care providers and emergency responders the unfettered right to stay home and be paid to care for healthy children who are unable to go to school or childcare because of the coronavirus. Both the paid sick leave and paid family leave provisions of the Act allow those who are not health care providers or emergency responders to receive these benefits at least to the extent that they cannot telework.
There are two questions that must be answered to determine the applicability of the exemption. First, who are considered “health care providers” under the Act? Second, how does an employer take advantage of the exemption?
All employees of a hospital, surgi-center or medical group are not exempted from these benefits. The Act makes clear that it is not the employer who must be a health care provider or an emergency responder, it is the employee. Therefore, a secretary or receptionist for a medical group, for example, is a covered employee under the Act and generally entitled to those benefits.
The Act authorizes the Secretary of Labor to promulgate regulations to exclude certain health care providers, as defined in the Family and Medical Leave Act (“FMLA”), from the definition of “eligible employees” under the Act. The FMLA defines “health care provider” to mean a doctor of medicine or osteopathy who is authorized to practice medicine or surgery. It also authorizes the Secretary to include as health care providers any other persons whom the Secretary of Labor determines to be capable of providing health care services. Prior to the adoption of the Act, the Secretary determined that dentists, podiatrists, optometrists, chiropractors, clinical psychologists and nurse practitioners all were health care providers. See 29 C.F.R. 825.125 (b). Presumably, this earlier determination enables employers to designate these practitioners as exempt from the Act. Should the pandemic continue to grow, it would not be a surprise if the Secretary labels others as health care providers exempted from the Act.
Under the Act, It is left up to employers to decide whether to exclude their health care providers from the Act. No approval is needed from the Secretary of Labor. The law firm’s Task Force will continue to update you as things develop.
Our attorneys are available to assist you through these difficult times. Any personnel or employment issues should be directed to Steven Adler, Co-Chair of the Labor and Employment Group and Co-Chair of the Litigation Department, and any healthcare related questions should be directed to Mohamed Nabulsi, Chair of the Healthcare Law Department.