November 24, 2020

Volume X, Number 329


November 23, 2020

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Need to Know: Expansive Health Care Provider Exemption under the FFCRA

Since the Families First Coronavirus Response Act was signed on March 18, 2020, employers of health care providers have wondered how much of their workforce would be eligible for paid sick leave and emergency FMLA leave. (Our prior blog post on this topic is available here.) Just in time for the April 1 effective date of the FFCRA, the Department of Labor has provided new guidance. (The guidance is available here)

While existing FMLA regulations provided exemptions for a number of specific provider types, many employees of health care facilities would not have been exempt. Under the DOL’s updated guidance, the health care exemption applies to everyone employed at a:

  • doctor’s office

  • hospital

  • health care center

  • health clinic

  • pharmacy

  • post-secondary educational institution offering health care instruction

  • medical school

  • nursing facility

  • retirement facility

  • nursing home

  • home health care provider

  • facility that performs laboratory testing

  • facility that performs medical testing

  • local health department or agency

The guidance also includes a catch-all category for employers similar to the listed employers. Further, the guidance allows exemptions for employees of entities that provide services to or maintain the operations of any of the employers listed above. Accordingly, all clinicians and non-clinical staff members working for health care employers or their contractors / vendors are exempt – they do not qualify for either paid sick leave or emergency FMLA leave under the FFCRA.

While the definition of health care provider is quite broad, the DOL urges employers to “be judicious” in exempting workers apparently based on its concern that employees could spread COVID-19 if leave is not available. This guidance is an important reminder to employers to consider how their policies may influence whether an employee who is sick will feel incentivized to come to work.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 90



About this Author

Gillian McKean Bidgood, Polsinelli PC, Employment Litigation Matters Lawyer, Post Termination Disputes Attorney

Gillian Bidgood treats clients’ problems like her own. She looks beyond the law and works with clients to understand the financial, practical, and personal motivations and implications of the employment issues and employment litigation she handles. This broad perspective helps Gillian ensure that she is responsive to clients’ needs and that she can proactively help clients define and meet their goals.

Gillian has successfully honed her skills as a trial attorney and legal counselor. Clients rely on her to find solutions and give sound advice on...

Scott M. Gilbert, Polsinelli, Restrictive Covenants Attorney, defensive perspectives lawyer

Scott Gilbert counsels his clients during critical moments of the employment relationship. Whether clients need to create a strategy related to a reduction in force, or understand the application of the Americans with Disabilities Act, Scott helps clients identify and evaluate risk factors in order to minimize liability.  Scott regularly advises clients on matters related to restrictive covenants from both the enforcement and defensive perspectives.  He also advises clients in all facets of employment litigation, from discrimination claims before the Illinois Department...