FFCRA Employee Eligibility, Including the “Healthcare Provider” Exemption
This summary explains the DOL’s regulatory stance on which employees qualify for FFCRA leave, including important new information about healthcare providers.
The regulations underscore that any employee who has been employed for at least thirty (30) days is eligible for Emergency Paid Family Medical Leave. An employee is considered to have worked 30 days if: (1) the employer had the employee on its payroll for the 30 calendar days immediately prior to the day the employee’s leave would begin; or (2) the employee was laid off or otherwise terminated by the employer on or after March 1, 2020, and rehired or otherwise re-employed by the employer on or before December 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated. The regulations also state that if an employee is employed by a temporary placement agency and is later hired by an employer, the employer should count the days worked as a temporary employee towards the 30 day eligibility requirement. Finally, it may go without saying, but please remember that the Emergency Paid Family Medical Leave is not controlled by the 1,250 hour and 12 months of employment that would otherwise apply in a normal FMLA situation.
Regarding Healthcare Providers, the DOL regulations provide important guidance on the scope of the exemption provided by the FFCRA. The regulations state that a healthcare provider is, “[a]ny Employee who is a healthcare provider under 29 CFR 825.102 and 825.125, or . . . [a]ny other Employee who is capable of providing healthcare services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The regulations also state that this exemption extends only to nurses, nurse assistants, medical technicians, those who provide the described healthcare services, those who provide those services under the “supervision, order, or direction of, or providing direct assistance to,” a person described in the regulations, and those who are otherwise “integrated and necessary to the provision of healthcare services.” The regulations specifically exclude from the exemption those who do not perform healthcare services such as IT professionals, cooks, and billers.
As for Emergency Responders, they are defined as, “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to 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, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency.”
The obvious takeaway from recent changes to the DOL regulations on the healthcare and emergency responder exemptions is that if you think your workforce falls into one of these categories, you should be in immediate consultation with your employment counsel. This exemption applies to all paid leave benefits and obligations under the FFCRA, so if this exemption might apply to your workplace, a decision about that, and how it is communicated to your employees, should be one of your top priorities.
FFCRA Regulations Overview
- Six Qualifying Events for Emergency Paid Sick Leave
- Which Employers the FFCRA Applies to, and How Small Businesses Obtain an Exemption
- FFCRA Employer Notice Requirements
- FFCRA Employee Notice of Need for Leave Requirements
- Continued Healthcare Coverage and the Intersection with Other Laws
- FFCRA Return to Work Issues, Employee Record-Keeping Obligations and Prohibited Acts
- Calculating the paid benefits owed under the FFCRA
- Intermittent ESL and EFMLA Leave and the Interplay Between EFMLA/ESL and the FMLA
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