Employment-related legal considerations during COVID-19: Part II
Legally Speaking
Robert M. Portman, JD, MPP, is a health care attorney with Powers Pyles Sutter & Verville, in Washington, DC, and serves as legal counsel for the AAD and AADA.
By Megan La Suer, JD, MHA, Rob Portman, JD, MPP, and Ben Tesdahl, JD, June 1, 2020
Every month, Dermatology World covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.
The Families First Coronavirus Response Act (FFCRA), which was signed into law in March, includes provisions that address family medical leave and paid sick leave for employees that need time off for reasons related to COVID-19. The FFCRA amends the Family and Medical Leave Act (FMLA) to require private sector employers in the U.S. with fewer than 500 employees to provide eligible employees with up to 12 weeks of FMLA leave if the employee is unable to work or telework due to a COVID-19-related issue. The FFCRA also includes the Emergency Paid Sick Leave Act, which provides all full-time employees with up to 80 hours of paid sick leave, in addition to the paid sick leave that an employee has already accrued. This article discusses certain exemptions for employers regarding the expanded FMLA and paid sick leave provisions effective during the COVID-19 pandemic.
Q: Is there an exemption to the FFCRA requirements for certain amounts of paid sick leave and family leave for health care workers who work at small businesses?
A: Yes. While the general rule is that all private employers that employ fewer than 500 employees at the time an employee would take leave must comply with the expanded paid sick leave and family medical leave, there is an exception for employers that employ a “health care provider” or an “emergency responder.” The FFCRA does not require these employers to provide employees expanded paid sick leave or expanded family and medical leave, although they may voluntarily do so on a case-by-case basis.
Q: How does the Department of Labor (DOL) define “health care provider”?
A: The definition of “health care provider” is very broad and would likely include most employees at a dermatology practice. According to the Temporary Rule and FAQs issued by the DOL, 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,” as well as any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”
This definition also includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility, including 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. (See 85 Fed. Reg. 19326, 19343.)
Q: What exemptions apply to businesses that employ fewer than 50 employees?
A: Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
The DOL has issued a Temporary Rule (85 Fed. Reg. 19326) which established objective criteria for when a small business with fewer than 50 employees can deny an employee paid sick leave or expanded family and medical leave. A small business may be exempted if an “authorized officer of the business” determines that either:
The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
If the authorized officer determines that any of the above qualifications are met, the business does not need to submit justification to the DOL. In fact, the DOL explicitly states that an “employer should not send such material or documentation to the Department, but rather should retain such records for its own files.” (See 85 Fed. Reg. 19326, 19336.)
Q: How does this impact businesses that employ 500 or more employees?
A: Private sector employers with 500 or more employees are not required to comply with the expanded paid sick leave or family medical leave requirements provided in the FFCRA. We presume that such employers will operate under their current leave policies or institute new policies given the severity of the COVID-19 public health epidemic.
This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.
