By: Justin M. Harrison and Grace E. Hurney
On March 18, 2020, the Families First Coronavirus Act (H.R. 6201) (the “Act”) was signed into law. The Act provides a broad range of economic relief for both businesses and families — it expands the Family and Medical Leave Act (“FMLA”), requires paid sick leave, and offers dollar for dollar tax credits for employers to recoup costs related to paid leave under the Act through the end of 2020. The Act, however, has notable exclusions. The law states that it does not apply to any employer with more than 500 employees. It also provides that employers of employees who are “health care providers or emergency responders” to elect to exclude such employees from coverage. The Act states that the Secretary of Labor shall issue additional guidance to further the implementation of the new law.
The Act does not provide a definition for “health care provider” or “emergency responder.” Instead, the Act makes an ambiguous reference to the definition of “health care provider” under the FMLA. The problem is that the FMLA definition of “health care provider” does not square with the purpose of the Act.
Under the FMLA, a “health care provider” is defined for the purpose of stating who can certify an employee’s serious health condition. The certifying providers are defined as: a doctor of medicine or osteopathy, podiatrist, dentist, chiropractor, clinical psychologist, optometrist, nurse practitioner, physician assistant, nurse-midwife, licensed clinical social worker, or Christian Science practitioner. A health care provider is also defined as any provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition.
This definition—without additional guidance—poses a significant issue for healthcare employers: healthcare entities, from nursing homes to hospitals to urgent care clinics to private physician offices employ more than just physicians and nurse practitioners. There are countless other employees—custodial services, Registered Nurses, Licensed Practical Nurses, Certified Nursing Assistants, nutritional services, administrative personnel, medical technicians—that play a vital role within our healthcare system. The law, as written, leaves it unclear as to whether the Act excludes these employees from coverage. It now falls to the Department of Labor to issue guidance to clarify these definitions.
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 further guidance is provided.