Without question, the most common question we have been receiving about the Families First Coronavirus Response Act (FFCRA) has been whether the so-called “health care provider exemption” would apply in various settings.  We are now pleased to report that the Department of Labor has issued guidance that makes it clear that the definition of “health care provider” will be interpreted quite expansively – far more broadly than pre-existing FMLA regulations would have suggested.  

The DOL’s guidance will permit most providers the option to exclude their employees from the coverage of FFCRA, meaning that staff will not be eligible for the expanded leave or the emergency paid sick leave benefits. This clarification from the Department of Labor recognizes important role that direct care staff will play in fighting the coronavirus outbreak and the public need for staff to be available to help respond to the public emergency created by COVID-19.  

The complete language of the new Department of Labor guidance is set forth below:

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

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.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

We believe that this is clear guidance that DOL intends for a very broad interpretation aimed at providing the employers of health care workers flexibility in determining whether they want to, or can, grant their employees the leave offered under the FFCRA.  Based upon this guidance, providers are able to opt out of FFCRA and not offer expanded FMLA leave and/or Emergency Paid Sick Leave under FFCRA if it would impact their operations. However, employers of health care workers are still subject to the leave requirements under the FMLA, ADA, and other existing laws. Further, employers should continue to ensure that employees who have symptoms of COVID-19 or are otherwise sick are encouraged not to come to work.

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