In a somewhat surprising action, the Department of Labor (“DOL”), on Saturday, March 28, 2020, effectively excluded a wide swath of workers from the new COVID-19 paid sick leave and emergency Family and Medical Leave Act (FMLA) requirements. The DOL used broad language to define who is a “health care provider” and “emergency responder.”

The DOL now defines “health care provider” and “emergency responder” as follows:

Health Care Provider

• For the purposes of employees who may be exempted from paid sick leave or expanded FMLA leave by their employer under the Families First Act, 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 definition includes any individual employed by a company that contracts with any of the above listed employers, including employers who provide services to or help maintain the operation of a health care facility. This definition 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.
  
  
• The State of Rhode Island may also designate additional classes of employees as “health care providers,” if necessary, to support its response to COVID-19.

Emergency Responder

• For the purposes of employees who may be excluded from paid sick leave and FMLA by their employer under the Families First Act, 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.
  
  
• “Emergency responders” include, but are 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.
  
  
• “Emergency responders” also include any employees who work for employers who employ emergency responders and whose work is necessary to maintain the employer’s operation.
  
  
• The State of Rhode Island may also determine that additional classes of employees are “emergency responders,” if necessary, to support the state’s response to COVID-19.
  

The takeaway is that the DOL broadly defined “health care provider” to include all health care workers, health care facility’s suppliers and health care facility’s contractors. These employees can be classified as “exempt” from receiving the emergency FMLA and paid sick leave. For emergency responders, the DOL provided that “emergency responders” include law enforcement, health care and emergency response employees. The DOL also exempted employees who support emergency responders from the new paid leave and emergency FMLA requirements.

Pannone Lopes Devereaux & O’Gara LLC employment attorneys will continue to update employers as the DOL issues additional guidance and regulations regarding the new Families First Coronavirus Response Act. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. O’Gara at 401-824-5117 or wogara@pldolaw.com.


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