Families First Coronavirus Response Act Contains Broad Opt Outs for Healthcare Providers

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”). The Act, which, according to Department of Labor (“DOL”) guidance issued on March 24, 2020 goes into effect on April 1, 2020, is intended to provide relief to employees in need of paid leave as a result of certain circumstances resulting from the COVID-19 crisis.  Specifically, it contains two sections that require all employers with fewer than 500 employees to provide additional paid leave to their employees:  the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  Employers, in turn, are then eligible for payroll tax credits for all amounts paid under the Act.

Significantly for employers in the healthcare industry, the Act contains exceptions for certain health care providers and emergency responders, who are working on the front lines of patient care during this public health emergency.  Although we are still awaiting regulations from the DOL, it appears that these exceptions will give employers in the healthcare industry flexibility to deny leave to employee healthcare providers and emergency responders if and when the employer deems appropriate based on then current business need.

Emergency Paid Sick Leave Act:

Generally, the Paid Sick Leave Act requires that private employers with fewer than 500 employees (along with certain covered public employers) provide paid sick time to an employee who is unable to work (or telework) for any of the following reasons:

1. the employee is subject to a federal, state, or local quarantine or isolation order related to coronavirus;
2. the employee has been advised by a health care provider to self-quarantine because of coronavirus;
3. the employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis;
4. the employee is caring for an individual subject or advised to quarantine or isolation;
5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to coronavirus precautions; or
6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

All employees of covered employers (except, as explained below, certain health care workers and first responders) are entitled to eighty (80) hours of paid sick time (an amount that is pro-rated for part-time employees), in addition to any amounts of paid time off that may otherwise be provided by the employer.  The Act caps the amount that covered employers must pay, on a per individual basis, to $511 per day (or $5,111 in the aggregate) where leave is taken for one of the first three reasons above and $200 per day (or $2,000 in the aggregate) where leave is taken for the last three reasons above. Therefore, more expansive benefits under this portion of the Act are available if a person is sick, instead of caring for others who are sick or unable to go to school.

The Emergency Family and Medical Leave Act:

The Act also contains an expansion to the Family and Medical Leave Act (“FMLA”).  In sum, the Act requires that private employers with fewer than 500 employees (along with certain covered public employers) provide up to 12 weeks of FMLA leave for “a qualifying need related to a public health emergency.” This leave must be provided to all employees (again, permitting employers to except certain health care workers and first responders) who have been employed for 30 days.  Unlike the Emergency Paid Sick Leave Act, the “qualifying need” under the Emergency FMLA is limited to only those circumstances where an employee is unable to work due to the need to care for a minor child if the child’s care provider is unavailable or the child’s place of child care or school has been closed or is unavailable due to a public health emergency.  For situations where the employee is sick because of a coronavirus-related event, other forms of available PTO or state-mandated leave would apply, as would “traditional” unpaid FMLA leave for that serious health condition.

Under the Emergency FMLA, the first ten days of leave are unpaid, factoring that the employee can use leave under the Emergency Paid Sick Leave Act or any other accrued paid time off during that period.  Following the first ten days of leave, the remaining ten weeks must be paid at two-thirds of the employee’s regular rate of pay, up to a maximum of $200 per day or $10,000 in the aggregate.

Exceptions for Health Care Providers and First Responders:

At the employer-level, companies that provide healthcare or emergency response services generally are covered “employers” under the Act if they employ fewer than 500 employees. There is no blanket exception for healthcare provider employers unless they employ 500 or more employees.

Both the Emergency Paid Sick Leave Act and the Emergency FMLA, however, authorize the Secretary of Labor to issue regulations that exclude employees who are health care providers and emergency responders from the benefits available under the Act. In addition to possible exclusions through regulations (that have yet to be issued), both portions of the Act permit an employer of an employee who is a health care provider or an emergency responder to elect to exclude such person from the leave benefits provided by the Act.

The critical question then becomes:  Who is a healthcare provider?  As noted above, the DOL is expected to issue regulations regarding the requirements of the Act as early as April 2020.  In the meantime, the DOL has posted Questions and Answers on its website at to assist employers with the proper application and implementation of the Act.  According to the DOL, for purposes of determining which employees may be excluded from the paid leave provisions of the Act, the term “health care provider” is defined very broadly, and includes

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.

Note that this is a different – and much more expansive – definition of “healthcare provider” than the one that is set forth in 29 C.F.R. § 825.125 to determine who can issue a medical certification under the FMLA.

For purposes of evaluating who may be excluded from the paid leave provisions of the FFCRA, “emergency responder” is defined similarly broadly to include:

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.

Thus, it appears that, if an individual is involved in any way in the provision of health care services or works at a location that provides health care services, the employer likely may opt to exclude that individual from the paid leave benefits of the Act, either entirely or at certain times based on business need.

What Does This Mean For Employers in the Healthcare Industry?

The “opt out” right in the Act allows healthcare employers to make decisions as to whether or not to allow paid leave to covered health care providers or emergency responders based on the employer’s current circumstances, such as staffing levels, needs for patient care, and the like.  For example, if a nurse has been diagnosed with the COVID-19 virus or is experiencing symptoms, then the employer certainly does not want that employee in the workplace, so the employer can place the employee on leave under the Emergency Paid Sick Leave Act and receive the tax credit for the amount paid from the federal government.  If the same nurse seeks leave – either under the Emergency Paid Sick Leave Act or the Emergency FMLA — because his or her children’s school is closed, however, the employer lawfully may opt to deny that request, or to grant it for one week and deny it for the next week based on staffing needs.  Similarly, an employer could exclude those individuals who are directly involved in patient care, while allowing administrative support personnel to take leave.  Recognizing the overriding need to stop the spread of the virus that causes COVID-19, the DOL urges employers to be “judicious” when exempting individuals from the Act’s coverage.

If you have any questions about any aspect of the Act or any other of the many rapid developments related to the coronavirus pandemic, please contact a member of the Employment Law Team at AGG.