Labor & Employment News Alert
UPDATE: The U.S. Department of Labor Issues Guidance Regarding the “health care provider” exemption under the Families First Coronavirus Response Act
March 30, 2020
By: Grace E. Hurney and Justin M. Harrison
On March 29, 2020, the Wage and Hour Division of the U.S. Department of Labor (the “DOL”) released additional guidance that resolves the ambiguity of the definition of “health care provider” in the Families First Coronavirus Response Act (the “Act”). The DOL has clarified that for the purposes of employees who may be exempted from paid sick leave or expanded FMLA leave under the Act, 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 definition also encompasses “any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
The DOL further specified that “[t]his 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” as well as “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.”
Finally, this expansive definition “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.”
In order to minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the [Act].”
The updated DOL guidance can be viewed at the following link: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Jackson Kelly’s Labor and Employment Practice Group is closely monitoring all developments related to the Families First Coronavirus Response Act and will continue to provide analysis of the Act as additional guidance is released.