COVID-19 Updates - FMLA Leave and Paid Sick Leave in General | Practicing DPMs

Last Updated: September 18, 2020 - DOL Revised Final Rule Narrows Health Care Provider Exclusion

Members can find relevant updates regarding federal changes to the Family Medical Leave Act and paid sick leave in general during the COVID-19 national public health crisis on this page. To see all of APMA’s COVID-19 resources, visit www.apma.org/COVID19.

Under the Families First Coronavirus Response Act (FFCRA), effective March 18, 2020, small and midsize employers (fewer than 500 employees) can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them for the cost of providing coronavirus-related leave to their employees. This leave can be used for the employee’s own health needs or to care for family members.

Generally, FFCRA provides employees with the following benefits if they have been on the payroll of an employer with 500 or fewer employees continuously since at least March 2, 2020 (prior to the effective date of April 1, 2020):

Two weeks (up to 80 hours) of paid sick time at the employee’s regular rate of pay where the employee is unable to work because the employee is isolated or quarantined (pursuant to federal, state, or local government order or advice of a health-care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of paid sick time at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to isolation or quarantine (pursuant to federal, state, or local government order or advice of a health-care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
Up to an additional 10 weeks of expanded paid FMLA leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child-care provider is closed or unavailable for reasons related to COVID-19.

The Department of Labor (DOL) continues to update its guidance page with questions and answers in addressing questions related to FFCRA on exempting small businesses with fewer than 50 employees and all health-care providers from providing paid sick leave as required under the Families First Act. The DOL appears to have accepted APMA's recommendations in its formal comments. The DOL recently issued a revised final rule, noting a narrower definition for excluded health-care providers:

Employees who meet the definition of health care provider under the FMLA, i.e., physicians and others who make medical diagnoses; and
Employees who are employed to provide diagnostic, preventive, or treatment services, or to provide “other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care”—such as bathing, dressing, hand feeding, taking vital signs, setting up medical equipment, and transporting patients and samples.

The revised rule clarifies that the exclusion includes those who may not interact with patients or report to providers, but whose services are integrated with and necessary to the provision of patient care. For example, a lab technician who processes test results (perhaps for COVID-19 testing) needed for diagnoses or treatment meets this definition. By contrast, IT professionals, maintenance staff, human resources, food service workers, records managers, consultants, and billers, would not meet the standard for exclusion.

Additional references and guidance:

US Department of Labor Guidance on Compliance with FFCRA Requirements: