UPDATED: Families First Coronavirus Response Act: Employment Law Guidance Specific to Healthcare Providers

This post was updated March 29, 2020. Updates are shown in red. 

This post discusses the changes to the Family and Medical Leave Act (“FMLA”) created by the recently passed Families First Coronavirus Response Act for employers in the healthcare industry. For information about potential business financial assistance and tax issues related to the COVID-19 coronavirus (“COVID-19”) epidemic, make sure to review our firm’s Business and Tax Blog, which is being updated to identify opportunities for businesses.

We will continue to update this post as there are new developments.

What is in this new Families First Act?

The Families First Act requires that in the face of the COVID-19 epidemic, covered employers must provide certain paid FMLA and sick leave to certain private employers with fewer than 500 employees and public employers.

When does the new Families First Act go into effect?

The new rules go into effect on April 1, 2020.

Are there any different rules for employers who operate in the healthcare industry?

To some extent yes. The Families First Act may allow an employer of an employee who is a “healthcare provider” or “emergency responder” to elect to exclude that employee from the application of the paid FMLA and sick leave portions of the law.

Does this law mean that each employee of an employer who operates in the healthcare industry is exempt from these new leave rights?

At the moment, no. It would be consistent with the Families First Act’s purpose to include in the definition of healthcare provider (and, thus, the exemption) all employees needed by the “healthcare provider” or “emergency responder” to provide care during the public health emergency. However, under the definition discussed below, it does not appear that an employer can elect to exempt any employee other than someone who would be considered a “healthcare provider” or “emergency responder” unless the Department of Labor (“DOL”) expands the definition. Thus, for the moment, employees who would not be considered “healthcare providers” or “emergency responders,” such as receptionists, cleaning staff, bookkeepers, or other office staff members, are not exempted from this law.

Which employees would be considered a “healthcare provider”? (Updated March 29, 2020)>

Based on this new Families First Act’s text, the FMLA’s prior definition of who is a “healthcare provider” applied. This definition was usually narrow and did not effectuate the purpose of the act. On March 28, 2020, the DOL provided clarification in response to question 56 of its Questions and Answers and stated:

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This 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. This also includes 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. This also includes 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.

Although this definition is not currently set forth in the FFCRA and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What about CNAs, Nurses, Activities Directors, Physical Therapists, and other individuals who directly interact and provide care to patients? (Updated March 29, 2020)

Based on the DOL’s March 28, 2020, response to who may be excluded by their employer from paid sick leave and/or expanded family and medical leave, such persons may be excluded. Keeping in mind that the DOL has strongly encouraged employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA.

Does this law mean that each employee of an employer who operates in the healthcare industry may be exempt from these new leave rights? (Updated March 29, 2020)

Yes. However, the DOL has strongly encouraged employers to be judicious when making decisions to exempt health care providers from the provisions of the FFCRA.

Which employees would be considered an “emergency responder”? (Updated March 29, 2020)<

The Families First Act does not define the phrase “emergency responder.” However, on March 28, 2020, the DOL providing the following definition:

[A]n emergency responder is 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. This includes but is not limited to military or 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, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Although this definition is not currently set forth in the FFCRA and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What steps would an employer need to take to elect to exclude a “healthcare provider” or “emergency responder” employee from this new law?

Unknown at this time, and the answer may depend on agency guidance.

For the time being, employers may wish to take steps somewhat similar to the ones that they would take under DOL guidance for “key employees,” i.e., salaried, eligible employees who are among the highest-paid 10% of all employees at the worksite and for whom unpaid leave and job restoration would cause an employer substantial and grievous economic harm. Thus, like with “key employees,” employers may wish to provide a written notice to the employee at the time the employee gives notice of the need for leave. The notice would advise that the employee qualifies as a healthcare provider or emergency responder and that the leave could not be allowed during this time.

Again, further guidance from the DOL likely will be needed to confirm the proper steps an employer must take.

Updated by Jennifer Fowler-Hermes, who may be reached at 941-552-2558.