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Ver 1.3
August 6 , 2020
12 . Who is a “ health care provider ” who may be excluded by their employer from paid sick leave and / or expanded family and medical leave ?
The USDOL has provided the following FAQ on this question . However , please note that such FAQs are not law and could be subject to change without notice .
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 the above institutions , employers , or entities institutions to provide services or to maintain 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 .
13 . When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act ?
The USDOL has indicated that an employer with fewer than 50 employees ( small business ) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern . A small business may claim this exemption if an authorized officer of the business has determined that :
A . 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 ;
B . 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
C . 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 .
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