As you know, Families First Coronavirus Response Act required employers (with less than 500 employees) to provide up to 80 hours of paid sick leave and 12 weeks of emergency family and medical leave to employees for covid-related reasons outlined in the Act. The law permits healthcare providers to be exempted from the Act. When the Families First Coronavirus Response Act was initially passed and regulations were promulgated by the Department of Labor, the Department of Labor defined “health care provider” expansively to allow for such an expansive exemption to the Act. Recently, a federal district court in New York invalidated certain regulations, including this expansive exclusion for health care providers. While there was initially a question as to whether that decision applied to employers outside New York, the Department of Labor decided to review the regulations in light of that decision. With respect to the definition of “health care provider” which would justify the exemption, the Department of Labor revised its definition and limited it.
For the purposes of defining the set of employees who may be excluded from taking paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider includes two groups:
1. This first group is anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of FMLA.
2. The second group is any other person who is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who do not provide direct heath care services to a patient but are otherwise integrated into and necessary to the provision those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are health care providers.
A person is not a health care provider merely because his or her employer provides health care services or because he or she provides a service that affects the provision of health care services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers are not health care providers, even if they work at a hospital of a similar health care facility.
For healthcare employers, assuming your workforce consists of individuals who are not health care provider, please post the notice with the following link: https://www.dol.gov/sites/dolgov/files/whd/posters/ffcra_poster_wh1422_non-federal.pdf
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. Here is guidance for the notice: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions#:~:text=Each%20covered%20employer%20must%20post,conspicuous%20place%20on%20its%20premises.
Also, attached is the link to the Q&Q which provides a lot of information relating to this Act. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions