On Tuesday, March 24, 2020, our firm published a legal briefing outlining the New York State and federal COVID-19 paid leave benefits (a copy of that legal briefing can be found by clicking this link). Earlier today, on March 30, 2020, the United States Department of Labor Wage and Hour Division (“WHD”) issued new guidance with respect to the “health care provider” and “emergency responder” voluntary exclusions under the Families First Coronavirus Response Act (“FFCRA”).
The WHD previously issued guidance which stated that “[e]mployers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act.”[1] However, this one-sentence guidance created considerable confusion for many medical providers and health care entities across the country. Who is considered a “health care provider” or “emergency responder” under the FFCRA? Are all employees of a health care facility exempt from FFCRA leave benefits? Today, WHD clarified and provided the answers to those crucial questions.
Under the guidance issued today by the WHD, “health care providers” who may be exempt under FFCRA includes anyone who is employed by a doctor’s office, nursing home, hospital, health care center/clinic, pharmacy, medical school, local health department, and other similar institutions.[2] The exemption also applies to individuals who are employed by an entity who contracts with one of the aforementioned institutions, and individuals who are employed by an entity that manufactures or provides medical services, medical products, medical equipment, tests, drugs, treatments, vaccines, or diagnostic vehicles.[3]
The WHD also provided clarification on the definition of “emergency responder” under FFCRA. Individuals who are considered an “emergency responder” who may be exempt under FFCRA includes individuals who are “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.”[4] Examples of employees considered “emergency responders” includes, but is not limited to, first responders (i.e., EMS, paramedics, fire fighters, and law enforcement officers), military and national guard, correctional institution personnel, 911 operators, public health personnel, nurses, physicians, and others.[5]
The above exemptions are intended for those individuals who are deemed crucial and necessary to maintain the health, safety, and order of our society during the emergency COVID-19 global pandemic. However, these exemptions are not government mandated. Employers may choose whether to exempt the above-listed employees from FFCRA benefits.
New York State currently does not have similar exemptions in place. In the event an employer does exempt its employees from FFCRA benefits, employees are still permitted to collect paid sick and family leave and disability benefits under New York State Law, if they meet certain qualifications (those qualifications are also contained in our previous legal briefing at the link above).
Our firm is diligently monitoring all state and federal laws, regulations, and guidance as it pertains to COVID-19 paid leave benefits. If you have any questions about this legal briefing or questions related to COVID-19 paid leave benefit coverage for your employees, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. ©2020 Law Offices of Pullano & Farrow PLLC
[1] https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
[2] https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
[3] Id.
[4] Id.
[5] Id.
For more Coronavirus Legal Updates, please visit our resource page.