202008.06
0

Employees Of Health Care Providers May Be Entitled To Paid Leave After All

The Families First Coronavirus Response Act (“FFCRA”) went into effect on April 1, 2020 and will remain effective until December 31, 2020. The FFCRA has two important parts. One of the important parts of the FFCRA is the Emergency Paid Sick Leave Act (“EPLSA”), which gives employees a right to collect up to two (2) weeks (or up to 80 hours) worth of wages for being impacted by COVID-19 by one of the six identified ways. The other important part of the FFCRA is the Expanded Family Medical Leave Expansion Act (“EFMLEA”), which gives an employee the ability to collect two-thirds of the employee’s average regular rate (up to $200 per day) for 10 weeks of work (up to a total of $10,000) if s/he qualifies for leave under one of the identified reasons. The EFMLEA is technically an expansion of the Family Medical Leave Act (“FMLA”).

Congress enacted the FFCRA in response to the coronavirus pandemic to allow employees to care for themselves and their families without having to weigh their personal health and safety against the value of a paycheck by providing for a continuation – in some form – of payment. The FFCRA incentivizes employers to pay the required leave by giving them a dollar-for-dollar payroll tax credit for each dollar spent towards the sick or leave pay available under the FFCRA.

After Congress enacted the FFCRA, it tasked the Department of Labor with administering the statute, and the DOL came up with a set of rules that are codified at 29 C.F.R. Part 826.

The State of New York filed a lawsuit in the Southern District of New York, State of New York vs. United States Department of Labor, 20-CV-3020 (JPO), challenging several different provisions of the rules implemented by the DOL. New York challenged the requirement that an employer have available work for an eligible employee, the definition of “health care provider”, whether an employee can take intermittent leave under the EPSLEA, and the requirement that an employee provide documentation before requesting leave available under the FFCRA.

This analysis will focus on how the Court treated the DOL’s definition of “health care provider”, since the decision striking down the DOL’s definition of “health care provider” is likely to have the biggest significant impact on people working in Miami-Dade and Broward Counties, where COVID-19 has run rampant.

On August 3, 2020, United States District Judge J. Paul Oetken issued a decision in State of New York vs. United States Department of Labor, and found that that the DOL exceeded its authority in providing the definition of a “health care provider” in the final rule. The Court struck down the definition of “health care provider” provided by the DOL and embodied in 29 C.F.R. §826.30 The Court reasoned that although the FFCRA provided a rather limited definition of who qualified as a “health care provider” exempt from the FFCRA, the DOL impermissibly expanded the definition beyond the text of the FFCRA to include “employees whose role bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.”

The impact of this decision has yet to be felt, since it is so new. If the decision stands up, then people who work(ed) for a “health care provider” but who are not health care providers themselves, and who are not in roles critical to allowing “health care providers” to operate, would be entitled to receive the legal benefits of paid sick and paid medical that Congress intended for them to receive. While doctors, nurses, and EMT’s  arguably still would be exempt from the sick leave provisions imposed by the FFCRA, the decision would seem to provide benefits (and legal remedies) to others who work for doctors, hospitals, and other “health care providers” under the FFCRA.

The FFCRA gives most people who work for businesses with less than 500 employees the ability to sue their employers for violating the “sick leave” provisions of the EPSLA, but it only allows employees who work for an employer that would otherwise be required to provide leave under the FMLA with the ability to file a lawsuit for violating the EFMLEA’s paid leave provisions.

The FFCRA, and Florida law, both prohibit retaliation and provide employees with a legal remedy for being retaliated against.

At the FairLaw Firm, we are here to help determine the best course of action for you.

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