3.24.20

UPDATE (4/1/20): The U.S. Department of Labor has issued guidance defining “health care provider” and explaining who may be excluded by their employer from the paid sick leave and/or expanded family and medical leave provisions of the FFCRA on this basis. According to Question No. 56, “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.” Further, the definition “includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.” The DOL’s guidance also defines “emergency responder” as “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.” The guidance also provides examples of covered workers.



As most of our readers know, President Trump signed into law last week the Families First Coronavirus Response Act, which, among other things, provides expanded leave under the Family and Medical Leave Act and paid sick leave to employees for certain time off related to COVID-19.

Many parts of the expanded FMLA leave and paid sick leave provisions of the FFCRA remain unclear, including their applicability to health care providers and emergency responders.

Are they exempt?

Health care facilities nationwide are experiencing a shortage of employees as well as supplies and equipment, and it is likely that emergency care providers are likewise strained. Both the FMLA expansion and the paid sick leave legislation indicate that health care providers and emergency responders may be exempted from the leave requirements. Here is the relevant language from each part of the FFCRA (emphasis added):

From the FMLA expansion legislation:
SPECIAL RULE FOR HEALTH CARE PROVIDERS AND EMERGENCY RESPONDERS
An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made under section 3102 of this Act.
From the Emergency Paid Sick Leave Act:
[A]n employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.

These provisions seem to say that certain employees can be exempt from these laws but not that the employer is exempt. For example, a hospital might be able to choose to not allow physicians or nurse practitioners to take leave under the expanded FMLA, but the hospital itself (assuming it had fewer than 500 employees) would still be covered by the law. And its employees who are not health care providers or emergency responders -- for example, custodians, clerical employees, or executives -- would still be eligible to take expanded FMLA leave or paid leave.

The FMLA expansion and paid sick leave legislation also provide that the Secretary of Labor has the authority to issue regulations that would provide exemptions relevant to health care employers and emergency services (emphasis added):

From the FMLA expansion legislation:
REGULATORY AUTHORITIES -- The Secretary of Labor shall have the authority to issue regulations for good cause . . . (A) to exclude certain health care providers and emergency responders from the definition of eligible employees under Section 110(a)(1)(A) . . .
From the Emergency Paid Sick Leave Act:
REGULATORY AUTHORITIES
The Secretary of Labor shall have the authority to issue regulations for good cause . . .
(1) to exclude certain health care providers and emergency responders from the definition of employee under section 5110(1) including by allowing the employer of such health care providers and emergency responders to opt out[.]

The FMLA excerpt seems to be giving the Secretary of Labor authority to issue regulations excluding health care providers and emergency responders from the definition of “eligible employee.” It does not appear to be saying that the employers themselves are exempt from the law, and it does not authorize the Secretary to issue regulations exempting employers. On the other hand, in the case of the Paid Sick Leave law, the Secretary has been authorized to issue regulations allowing employers of health care providers or emergency responders the ability to “opt out.” Although the legislation does not say what the employers could potentially be allowed to “opt out” of, it could arguably mean “opt out of complying with the Emergency Paid Sick Leave Act.” However, it appears that this would be possible only if and when the Secretary of Labor issues regulations authorizing such. 

In short, neither the FMLA expansion nor the paid sick leave provisions of the FFCRA appear to exempt employers of health care providers or emergency responders. However, it does appear that employers may be empowered to exempt certain employees who are health care providers or emergency responders. Moreover, it appears that the Secretary of Labor is authorized to issue regulations that would exempt employers of health care providers or emergency responders from the paid sick leave provisions of the FFCRA. Whether the Secretary would do so remains to be seen. In the meantime, employers in health care and emergency services who have fewer than 500 employees should assume that they are subject to both provisions but may be able to exempt employees in these positions.

Which employees might be exempt?

If health care providers may not be eligible for expanded FMLA leave or paid sick leave, then what is a “health care provider”? The expanded FMLA borrows the definition of “health care provider” from the “old” FMLA, for purposes of certifying an individual's serious health condition. Under the “old” FMLA, a health care provider is “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices,” or “any other person determined by the Secretary to be capable of providing health care services.”

According to the U.S. Department of Labor, others “capable of providing health care services” include the following:

  • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist);

  • Nurse practitioners, nurse midwives, clinical social workers and physician assistants;

  • Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;

  • Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and

  • A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country.

Notably, it is unclear whether nurses who are not nurse practitioners fall under the definition of “health care providers.”

“Emergency responders” is not defined by the FFCRA.

Conclusion

It appears that employers may exclude physicians, or any of the above-listed health care providers, from the expanded FMLA and paid sick leave provisions of the FFCRA. Beyond that, employers in health care or emergency services should await further guidance from the Department of Labor.

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