Ask Leslie: Are My Employees Excluded From Payments Under The Families First Coronavirus Response Act?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

I am a dentist and run a small dental care office. Are my employees excluded from receiving payments under the Families First Coronavirus Response Act (FFCRA) when they meet the criteria?

Signed: Dr. Susan

 

Dear Dr. Susan:

There are 93 FAQs promulgated by the U.S. Department of Labor regarding FFCRA. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Number 56 states as follows:

Who is a "health care provider" who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of Employees who may be exempted from Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, 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. 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 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. 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.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.

Your employees would seem to be included in the above list of FFCRA exclusion because you operate a "health care center". However, please be aware these published FAQs are not law and therefore are subject to interpretations and changes without notice; therefore, always check with your local counsel.

You may, of course, decide on your own to pay your employees when they meet the FFCRA criteria to receive emergency paid sick leave or extended family and medical leave.

https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

 

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