As the April 1st effective date of the Emergency Family and Medical Leave Expansion Act and (the Emergency Paid Sick Leave Act approaches, the Department of Labor is continually providing guidance to employers regarding how the Acts will be implemented. Two of the biggest questions about the Acts related to what employees are considered health care providers for purposes of who is excluded from the benefits of the Acts and (2) what are the criteria to be used by businesses with less than 50 employees to determine if they qualify for the small business exemption from the Acts.
The DOL has now answered these questions in their latest guidance.
Small Business Exemption
The DOL has issued the criteria that a small business needs to meet to claim the small business exemption from the Emergency FMLA and the Paid Sick Leave Act. According to the DOL, a small business may claim the exemption if an authorized officer of the company has concluded that:
- Providing the leave would result in the employer’s expenses and financial obligations exceeding available business revenues and would cause the business to stop operating at a minimal capacity;
- The absences of the employees requesting leave would create a substantial risk to the financial health or operational capabilities of the 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 to provide the labor or services needed by the employees requesting paid leave, and these labor or services are needed for the small business to operate at a minimal capacity.
The DOL is still advising that employers intending to claim this exemption merely prepare and retain the supporting documentation and not send anything to the DOL at this time.
Definition of "health care provider" that can be excluded from the new benefits
The DOL has updated their guidance to identify who qualifies as a “health care provider” under the Act that may excluded from paid sick leave and expanded family and medical leave to include “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” and anyone employed by an entity that contracts with any of these employers.
From this definition, any employee of any medical provider can be excluded from receiving the benefits of the new Act.
About the Author
Lisa M. Molsbee, J.D. is a Director at Christensen Law Group, PLLC. She is an expert in employment matters, insurance, subrogation, appellate matters and litigation. You can read more about her and her legal experience here.