The Department of Labor added additional answers on March 28, 2020 to its website containing Frequently Asked Questions pertaining to the Families First Coronavirus Response Act (FFCRA).  The DOL set forth answers regarding who qualifies as a “health care provider” and an “emergency responder” under the FFCRA:

  1. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

  1. 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.

  1. Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is 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 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. This 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.

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

 

The DOL also provided answers to questions regarding the small business exemption of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act.  Importantly, the DOL provided that the small business exemption only applies to the expanded family and medical leave, and not to the Emergency Paid Sick Leave Act:

This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

    • employer employs fewer than 50 employees;
    • 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
    • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

Companies that are closed or have furloughed employees because of lack of work are not required to provide paid sick leave or expanded family and medical leave under the FFCRA. 

On March 27, 2020, the DOL provided additional FAQs, and of importance the DOL provided an answer to many employers’ question of whether the employer must provide paid sick leave or expanded family and medical leave if the employer’s workplace is closed.  The DOL stated in question numbers 23 and 24 that employers are not required to pay for paid sick leave or expanded family and medical leave if it has closed its worksite.  In addition, the DOL explained that if the employer is open for business, but furloughs certain employees after April 1, 2020 (the effective date of the FFCRA) because of lack of work, this employee would not be entitled to paid sick leave or expanded family and medical leave. See question number 26.