Under the Families First Coronavirus Response Act (FFCRA), which is effective April 1, 2020 through December 31, 2020, certain employers must provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. The FFCRA provides some specific exemptions from coverage for health care providers, emergency responders, and small businesses that meet certain criteria. The U.S. Department of Labor (DOL), in its Questions and Answers (Q&A) regarding the FFCRA, provides details regarding these exemptions.
Health Care Provider Exemption
Recently, the United States District Court for the Southern District of New York issued an opinion and order that held, among other things, that the DOL's definition of "health care provider" in the FFCRA was too broad with respect to the application of the exemption. The DOL’s regulation for the FFCRA defines a "health care provider" more broadly than the Family and Medical Leave Act's (FMLA) definition of "health care provider," which is limited to "a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate)" or "any other person determined by the Secretary to be capable of providing health care services."
Accordingly, as of August 3, 2020, health care entities in New York should exercise caution before denying an employee FFCRA leave based on the health care provider exemption. In accordance with the FMLA and corresponding regulations, employers may apply the exemption to the following health care providers: doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and any health care provider accepted by the employer’s group health (or equivalent) plan.
Emergency Responder Exemption
The FFCRA also provides an exemption for emergency responders. It defines an "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. This definition 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. It 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.
Small Business Exemption
The DOL's Q&A provides that an employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
For more information about these exemptions, please contact CCB Law.