DOL Issues Guidance on FFCRA Small Employer and Health Care Provider Exemptions
In the days since the Families First Coronavirus Response Act (“FFCRA”) was enacted, the U.S. Department of Labor (“DOL”) has issued several rounds informal guidance in the form of Questions & Answers. As you may recall, we wrote last week on the first round of Q&A’s. We wanted to highlight a few of the more noteworthy provisions of the most recent round, which was issued over the weekend, that are of interest to small employers and employers in the health care field.
Small Business Exemption
As we noted previously, the FFCRA provides that an employer with fewer than 50 employees may be exempt from the mandate to provide Emergency FMLA Leave and Emergency Paid Sick Leave to qualified employees who are unable to work or telework because his/her child’s school or place of child care is closed because of COVID-19. This exemption has been of interest to many small employers, who are not currently covered by the FMLA.
Although it initially appeared that the first clarification would come from the DOL’s forthcoming regulations, which are expected in April, the newest round of Q&A’s provides some clarity on this point. The DOL guidance says that, to claim this exemption, the employer’s “authorized officer” needs to determine that one of the following applies:
Providing E-FMLA and EPSL for school closure/child care unavailability “would cause the business’s expenses and financial obligations to exceed its revenues and cause the business to cease operating at a minimal capacity”;
The employee’s absence would entail a substantial risk to the business’s financial health or operational capabilities because of specialized skills, knowledge of the business, or responsibilities that the employee possesses; or
There are insufficient workers who are able, willing, and qualified to perform the labor or services provided by the employee(s) requesting child-care leave, and this labor or services are needed for the business to operate at a minimal capacity.
Health Care Provider Exemption
The FFCRA also allows covered employers – again, those with fewer than 500 employees – to exclude employees who are health care providers or emergency responders from its coverage completely. The text of the Act adopted a fairly narrow definition of “health care provider” by adopting the definition of that term as it is used in the Family and Medical Leave Act (“FMLA”). There was no blanket exemption for employers in the health care industry.
In its guidance, however, the DOL also significantly expanded the scope of the “health care provider” exemption. The DOL now defines a “health care provider” to include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health care 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.”
For purposes of the FFCRA, a “health care provider” also includes “any individual employed by an entity that contracts with any of the above institutions, employers, entities, or institutions to provide services or to maintain the operation of the facility.” In addition, it 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.”
At 2:00 p.m. on Tuesday, March 31, we will be presenting a free webinar on the FFCRA in conjunction with the Greater Lehigh Valley Chamber of Commerce. You can learn more about the webinar and register here. We hope that you can join us!
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