The Families First Coronavirus Response Act (FFCRA) generally requires employers of fewer than 500 employees to provide certain new paid leave benefits to their employees. However, the FFCRA also provides that “[a]n employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee” from these paid leave benefits.
In the days since the FFCRA was signed into law, this exception has created considerable confusion because the law does not define “health care provider,” and the existing definition under the Family and Medical Leave Act fails to include many professions that are commonly understood to be health care providers. On March 28, the U.S. Labor Department issued guidance in the form of a regularly updated question-and-answer document, which provides some clarity regarding who qualifies as a “health care provider” and how employers can assert this exception.
The Labor Department clarified that for purposes of which employees may be exempted from emergency paid sick leave or expanded FMLA leave, a “health care provider” includes “anyone employed at” the following institutions, employers, or entities:
- Doctor’s office
- Health care center
- Post-secondary education institution offering health care instruction
- Medical school
- Local health department or agency
- Nursing facility
- Retirement facility
- Nursing home
- Home health care provider
- Facility that performs laboratory or medical testing
- Any similar institution, employer, or entity
Therefore, an employer who falls within any of the above categories can elect to exclude all of its employees from the paid leave benefits under the FFCRA.
The guidance also extends this exception to “any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility.” For example, a janitorial or cleaning company that provides services to a hospital could also choose to exclude all of its employees from paid leave benefits under the FFCRA.
The update does not provide any guidance concerning how an employer should document its election, and the Labor Department “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”
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