The Department of Labor (DOL) continues to provide guidance concerning an employer’s obligations under the Families First Coronavirus Response Act (the Act). Key issues have now been addressed, significantly including the definitions of “health care provider” and “emergency responder” for purposes of leave exclusion, as well as the elements that must be met for a “small business” exemption to the Act. 

Here are the highlights from the DOL’s latest guidance:

Health care providers and their staff can be excluded from leave under the Act. 

The Act permits employers to exclude “health care providers” from taking paid sick leave or paid FMLA leave under that Act. DOL has now defined “health care providers” to include both the providers and their staff. Under the Act, 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. 

• 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.

• 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.

Small Business Exemption 

Employers with fewer than 50 employees (small businesses) are exempt from providing paid leave for child care purposes 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 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 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 enough sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the work provided by the employee requesting leave, and this work is needed for the small business to operate at a minimal capacity.

“Emergency responder” is broadly defined.

The Act likewise permits employers to exclude “emergency responders” from taking paid leave under the Act. DOL has now defined that term to include:

• 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, which 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.  

• 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.

What about expanded FMLA under the new Act for employees who previously took FMLA for non-COVID-19 reasons? 

For employers covered by the FMLA before April 1, 2020, an employee’s eligibility for expanded FMLA under the Act depends on how much leave has already been taken during the 12-month period that the employer uses for FMLA leave purposes. If the employee has taken some, but not all of his or her 12 workweeks of leave before using expanded FMLA leave under the Act, then the employee may take the remaining portion of leave available. But employees are not entitled to any expanded FMLA under the Act if they have already exhausted their full 12 workweeks of FMLA leave. Paid sick leave under the Act does not count toward the 12 workweeks of FMLA. 

What if we already provide paid leave?

Paid sick leave under the Act is in addition to other leave provided law, CBA, or employer policy. The DOL’s guidance is available here.