Families First Coronavirus Response Act – Health emergency leave and exempted health care providers

The Secretary of Labor recently promulgated temporary regulations (the “Regulations”) in connection with the Families First Coronavirus Response Act (FFCRA) to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to assist working families facing public health emergencies arising out of the coronavirus 2019 (COVID-19) pandemic. Certain public employers and private employers with fewer than 500 employees are required to provide these new leave benefits, with a key carveout for “Health Care Providers” and “Emergency Responders.” 

Brief summary of the Families First Coronavirus Response Act

Generally, the FFCRA requires covered employers to provide paid sick leave to eligible employees who are unable to work (or telework) consistent with the following:

1. Paid sick leave at the employee's regular rate of pay (capped at $511 per day) where the employee (1) is subjected to a federal, state or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) is experiencing COVID-19 symptoms and seeking a medical diagnosis; or
   
   
2. Paid sick leave at two-thirds the employee's regular rate of pay (capped at $200 per day) where the employee is (1) caring for an individual who is either subjected to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for their own son or daughter whose school or place of care has been closed or where their child care provider is unavailable due to COVID-19 precautions; or (3) experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

Specifically, full-time employees are entitled to 80 hours of COVID-19-related paid sick leave, and part-time employees are entitled to COVID-19-related paid sick leave in an amount equal to the number of hours that the employee works, on average, over a two-week period. 

The FFCRA also requires employers with fewer than 500 employees to provide employees who have been working for at least 30 calendar days with up to 12 weeks of job-protected FMLA leave if an employee is unable to work (or telework) due to a need to care for a child under 18 years of age if the child’s school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.  Under this portion of the FFCRA, the first 10 days of such leave are unpaid (although the employee may be entitled to COVID-19-related paid sick leave under the provision previously discussed), and employees are entitled to paid leave in an amount equal to two-thirds of the employee’s regular rate of pay for the remaining 10 weeks (capped at $200 per day). 

For additional information about the FFCRA, please see our prior alerts on this subject: 

1. Family First Coronavirus Response Act: US Department of Labor regulations provide additional guidance for employers
2. Coronavirus: Congress passes revised paid leave law (United States) and
3. US employee benefits and the coronavirus

Health care providers may be excluded from being able to take paid sick leave under the FFCRA

In an effort by the federal government to make available as many healthcare providers as possible to aid in the COVID-19 response, covered employers may choose to exclude employees who are health care providers or emergency responders from eligibility for leave under the FFCRA. 

The term “health care provider,” as used to identify those employees who may be exempted from the FFCRA’s leave provisions,¹ is defined by the Regulations as “anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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.” Temporary locations providing medical services similar to those listed above are also covered. 

Furthermore, the definition of “health care provider” for purposes of the exemption also includes:

• any individual employed by an entity that contracts with any of the above institutions to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility
  
  
• 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 and
  
  
• 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 the COVID-19 pandemic.

This expansive definition includes clinical and administrative personnel. The US Department of Labor has taken the position that in order to minimize the spread of COVID-19 it “encourages employers to be judicious when using this definition to exempt health care providers and emergency responders from the provisions of the FFCRA.”

Employers should note that the decision to exclude all or some employees from eligibility to take leave pursuant to the FFCRA is voluntary, and those employers who choose to provide leave consistent with the FFCRA to those “health care providers” who might otherwise be excluded are encouraged ensure that such leave is compliant with the requirements of the FFCRA in order to take advantage of applicable tax credits afforded by such statute.

DLA Piper continues to closely monitor additional guidance and developments in the FFCRA as this situation unfolds. For information on other ways the COVID-19 pandemic is changing the healthcare industry and how your company can help serve patients, please contact your DLA Piper relationship partner or any member of our healthcare industry group. Please visit our Coronavirus Resource Center and subscribe to our mailing list to receive alerts, webinar invitations and other publications to help you navigate this challenging time.

This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.