DOL Issues New Guidance on Health Care Provider and Small Business Exemptions from New Paid Leave Laws 

The Families First Coronavirus Response Act (“FFCRA”), which requires employers to provide varying levels of paid leave to certain employees affected by the COVID-19 crisis, goes into effect today, April 1.  We previously reported that the FFCRA’s paid leave requirements might not be applicable to certain health care providers and certain small businesses (under 50 employees), but we had little information on the specifics of these exemptions.  Yesterday, the Department of Labor published new guidance in the form of FAQs, shedding some light on the matter.  For the full guidance, click here.   For a summary, keep reading.

Health Care Provider Exemption 

From the outset, the FFCRA provided that employers might not have to provide paid leave to “health care providers”; however, exactly who met that definition remained unanswered.  FAQ #56 of the recent DOL guidance provides some clarification and states:

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.

Clearly, the intent is to keep health care providers who are needed to fight this pandemic in the workplace.  By the plain language of the guidance, this includes not only doctors, nurses and other primary caregivers, but also administrative staff and others required to support those caregivers.  The guidance also states that such employees “may” be exempted from the FFCRA by their employer; thus, the decision on whether or not to provide FFCRA paid leave rests with the employer.  The DOL cautions, however, that employers should “be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”

The takeaway here is that many businesses who employ health care workers seem to be able to make a case-by-case analysis of whether any given employee is entitled to paid leave under the FFCRA.  Again, it seems clear that the intent of the guidance is to maintain the availability of employees needed to provide essential medical care and, particularly, to fight the COVID-19 crisis, while providing other employees with the benefits of the FFCRA.  

Small Business Exemption

The FFCRA provided that small businesses with less than 50 employees could seek an exemption from the paid leave requirements of the Act if they could show that compliance posed a threat to the ongoing viability of the business.  In previous guidance, the DOL stated that criteria for making this determination were forthcoming.  In this latest guidance, at FAQ Nos. 58 and 59, small businesses finally get some much-needed direction.  

Most notably, the DOL takes the position that the potential for exemption from paid leave requirements only applies to employees seeking leave “because a child’s school or place of care is closed, or child care is unavailable, due to COVID-19 reasons.”  In other words, according to the DOL, there is no small business exemption for employees seeking paid leave for the other reasons set out in the FFCRA, such as personal illness, quarantine or the need to care for ill family members.

So, the small business exemption is narrower than we first thought.  The FAQs provide that the exemption may be claimed if an authorized officer of the business has determined that:

1. The provision of paid 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;  
2. The absence of the employee or employees requesting paid 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  
3. 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 leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Interestingly, the guidance clearly implies that small businesses can claim the exemption on an employee-by-employee basis, based on the impact that particular employee’s absence would have on the business.  

To summarize, businesses need not provide paid leave under the FFCRA if:

1. They employ fewer than 50 employees;
2. The leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
3. An authorized officer of the business has determined that at least one of the three conditions described above are met.