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Healthcare Providers and First Responders: How New Paid Leave Laws Affect Your Workforce

In the midst of the COVID-19 crisis, Congress passed the Families First Coronavirus Response Act (“Families First”), which requires most employers to provide ten days of paid sick leave and paid FMLA benefits to employees under certain circumstances. Healthcare providers, however, are dealt with differently than other workers.  How Families First will manifest itself for healthcare workers is unclear but here are some takeaways:

  1. Emergency Family and Medical Leave Expansion Act – This portion of Families First expands the Family and Medical Leave Act (FMLA) to those who are unable to work due to having to provide care to a child because of the closing of a school or child care center. Not only is it expansive in scope – it applies to most employers with fewer than 500 employees and to any employee who has worked for the employer for thirty days – it requires that these employees be paid 2/3 of their salary for the final ten weeks of the twelve weeks of leave (the first two weeks are unpaid).

  1. Emergency Paid Sick Leave Act – This portion of Families First requires employers to provide up to ten days of paid sick leave for employees who become sick; are under quarantine orders; are seeking care; or are caring for a sick individual or a child who is at home because of a COVID-19-related closure. Employees who are sick, quarantined or seeking care are given up to ten days at full pay, while those who are caring for others may receive up to ten days at 2/3 pay.
Both of these sections of the Families First law provide language that healthcare providers and emergency responders are excluded from the definition of eligible employees. Both sections of the Families First law state that the Secretary of Labor may draft regulations concerning the exclusion of healthcare providers, which may be the mechanism by which these employees and their employers are exempted. There is language in the paid sick leave regulations that may require healthcare providers and first responder employers to affirmatively opt out, so healthcare providers and first responders should approach these provisions with caution until the regulatory provisions are made known.

We will provide updates as soon as these regulatory provisions unfold, so keep checking back for more information.

UPDATE – The DOL has provided guidance as to who qualifies as a “health care provider” and “emergency responder” for purposes of these paid leave provisions and exclusions. The following test is taken directly from the DOL Families First Coronavirus Response Act Q&A for employers:

“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 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.

Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder 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 emergency responders from the provisions of the FFCRA.”


Luke Morgan is a Member of McBrayer law.  Mr. Morgan focuses his practice in the areas of hospitality and tourism law, administrative law, civil rights, commercial and business litigation, gaming law, and mediation services. He is located in the firm's Lexington office and can be reached at lmorgan@mcbrayerfirm.com or (859) 231-8780 ext. 1105.

Services may be performed by others. 

This article does not constitute legal advice.
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