As we previously wrote here, the Families First Coronavirus Response Act (the Act), signed into law by President Trump on March 18, 2020, creates two new emergency leave benefits for eligible employees in response to the COVID-19 pandemic: (1) emergency paid family and medical leave (EFML) and (2) emergency paid sick leave (EPSL). The Act takes effect on April 1, 2020 (the "Effective Date").
These requirements generally apply to employers with fewer than 500 employees. The requirements of the EFML and EPSL are discussed in more detail here.
However, both the EFML and the EPSL include a similar provision allowing employers to exclude health care providers (and emergency responders) from these leave benefits.
While many believed that "health care provider" would be defined consistent with the Family and Medical Leave Act (FMLA), the Department of Labor (DOL) issued guidance expansively defining health care provider for purposes of the EFML as:
- Anyone employed at any:
- Doctor's office;
- Health care center or clinic;
- Post-secondary educational institution offering health care instruction and 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; and
- Any similar institution, employer, or entity, including any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions;
- 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;
- Anyone employed by an 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 who 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.
An employer may make different decisions to allow or deny leave under the EPSL and the EFML. So the employer could allow health care providers to utilize the 80 hours of leave under the EPSL, but not allow health care providers to use the paid leave under the EFML.
The DOL has not yet provided guidance on how employers of health care providers should elect to exclude such employees or what notice should be provided to health care employees. However, employers should notify their employees if they are going to deny leave under either the EPSL or the EFML (or both) at the earliest possible time. Any such decision should be communicated clearly to employees, including whether only certain categories of employees will be excluded from leave coverage.
We are monitoring legislative and regulatory developments and will provide updates as more guidance is released. In the meantime, employers should confer with counsel about this decision and ensure that they have a firm policy in place reflecting such decision prior to the Effective Date.