Does My Small Business Qualify for An Exemption Under the Coronavirus Paid Leave Law?
The FFCRA paid sick leave and expanded family leave law exempts healthcare providers and emergency responders. Here are the requirements you need to know about.
Here's what you need to know:
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The FFCRA mandates paid sick leave and expands family leave for companies with less than 500 employees
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However, healthcare providers/emergency responders may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA
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The U.S. DOL has definitions for the terms “health care provider” and “emergency responder”
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Many of the requirements needed for small businesses to obtain their exemption don’t apply to the healthcare provider/emergency responder exemption
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There is no application process nor does a business that meets the definition of a healthcare provider/emergency provider have to seek the DOL’s approval
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However, it’s still a best practice to keep documentation
The Families First Coronavirus Response Act (FFCRA) mandates paid sick leave and expands family leave for companies with less than 500 employees. However, the recently approved federal law provides that, in certain circumstances, some of its requirements do not have to be met.
The FFCRA allows exemptions for:
- Small businesses, employers with fewer than 50 employees including religious and nonprofit organizations
- Healthcare providers/emergency responders
This article examines the exemption for healthcare providers/emergency responders.
The FFCRA was signed by President Trump on March 18 and took effect on April 1. The federal law will expire on December 31, 2020.
For the purpose of obtaining the exemption, the United States Department of Labor has broadly defined the terms “health care provider” and “emergency responder.”
Who is a healthcare provider?
In regulations issued after the passage of the FFCRA, the Labor Department says a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave 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
- Facility that performs laboratory or medical testing
- Pharmacy, or any similar institution, employer, or entity
- Permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions
The DOL says the definition of a healthcare provider includes any individual employed by an entity that contracts with any of the institutions listed above to “provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility.”
Healthcare providers, according to the DOL, are also:
- 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
- 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
Employers are encouraged “to be judicious when using this definition to exempt health care providers.”
The Labor Department notes that employers are encouraged “to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.” For example, an employer may decide to exempt employees from leave for caring for a family member but choose to provide paid sick leave in the case of their own COVID-19 illness.
Who is an emergency responder?
Emergency responders may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA. An emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19, the DOL says. This includes:
- The military or national guard
- Law enforcement officers
- Correctional institution personnel
- Firefighters
- 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
The DOL also classifies emergency responders as:
- 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 whom 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
Other requirements
Many of the requirements needed for small businesses to obtain the small business exemption don’t apply to the healthcare provider/emergency responder exemption. In general, small employers are exempt from providing emergency paid sick leave and paid family and medical leave under the FFCRA if doing so “would jeopardize the viability of the small business” and specified criteria is met.
“You’re either eligible by the nature of your practice or you are not,” Louis Federici, a principal with the law firm of Parrett, Porto, Parese & Colwell, P.C., says about the healthcare provider/emergency responder exemption. Federici and firm principal, Jennifer Rignoli, wrote a blog post for the firm on the exemption.
For example, while the small business exception applies to businesses with employers with fewer than 50 employees including religious and nonprofit organizations, there is no maximum number of employee limitation for organizations that want to exercise the healthcare provider/emergency responder exception.
In addition, while “a small business may be exempted from FFCRA requirements if it can show that there is not enough revenue coming in to afford the expanded benefits, not enough skilled workers to do the specialized work critical to the business, or not enough available workers to do the work to keep the business going,” there is no such requirement for the healthcare provider/emergency responder exemption. “They don’t have to prove that financial burden,” Federici says.
No application needed
Similar to the small business exemption, there is no application process nor does a business that meets the definition of a healthcare provider/emergency provider have to seek the Labor Department’s approval. The law came into being at lightning speed, Federici explains, so to enforce certification would have been difficult.
“Generally, this is an expansion of the Family and Medical Leave Act and any time you are taking an action under the FMLA every administrative review is after the fact — someone requests leave and you grant it or don’t grant it or conditionally grant it so you make the best decision, your analysis of what the regs say for that circumstance. And then you had better be prepared to defend it if someone brings a complaint. So the same principle applies here,” he says.
Similar to the small business exemption, there is no application process nor does a business that meets the definition of a healthcare provider/emergency provider have to seek the Labor Department’s approval.
Recommendations
The Labor Department recommends that businesses seeking the small business exemption document why the business meets the criteria. Healthcare providers/emergency responders do not have to make such a showing; they have a more direct path, Federici says. However, it’s a best practice to keep documentation, he adds.
Federici recommends that organizations looking to exercise the exemption:
1) Make an assessment of why it’s necessary to do that
2) Determine who it’s going to affect
3) Make sure they are critical to the operation
4) Be frank with people as to why it is happening and if circumstances are going to change
