The DOL has clarified that employers can receive tax credits for giving paid sick leave and paid, expanded FMLA to health care providers, under FFCRA.
Health Care Providers: Under Families First Coronavirus Response Act (“FFCRA”), employees who are health care providers receive special status. The expanded FMLA section allows the Department of Labor to issue regulations that “exclude certain health care providers and emergency responders” from eligibility under the law. The paid sick leave portion states that “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” The former gives the DOL the power to exclude health care providers from coverage; the latter leaves the power to the employer.
The Issue: Employers who employed health care providers were left wondering, if they decide to provide their employees with both paid sick leave and paid expanded FMLA under FFCRA, would they receive the tax credits for both? The Department of Labor has since clarified this issue through regulations. The DOL gave the power to exclude these employees squarely to the employer. An employer may exclude a health care provider or an emergency responder employee from the paid sick leave requirements or the expanded FMLA benefits; it is the employer’s decision.
What Does this Mean? For employers who want to include health care provider employees in paid sick leave and expanded FMLA leave under FFCRA, they may do so and receive tax credits. The regulations state that if an employer chooses to provide paid sick leave and paid FMLA under FFCRA to health care providers, such leave is subject to all other requirements of FFCRA, “and should be treated in the same manner for purposes of the tax credit created by the FFCRA.” So, feel free to include your health care provider and emergency responder employees and be assured you will receive tax credits for providing these benefits.
Now that you know you can receive tax credits for providing health care provider employees with paid sick leave and expanded FMLA, please see the below definition of health care providers:
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 these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support 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.
ABOUT KATHARINE BATISTA
Ms. Batista is a Labor & Employment attorney that assists her clients when deciding issues like If my employee has exhausted her FMLA leave and remains out, am I required to hold her position open? Can I terminate my employee for testing positive for marijuana? Will this non-compete agreement be enforced? She helps her clients answer these and similar questions, and vigorously defends their decisions. She represents businesses, such as restaurants, hotels, banks, retailers and health care providers, in the spectrum of employment and labor claims. Specifically, Ms. Batista successfully defends employers against claims of discrimination and harassment, retaliation, wrongful terminations, and wage and hour violations. An employee’s post-separation conduct often requires legal advice and action too. Ms. Batista commonly represents her clients in bringing actions for breach of restrictive covenants and contractual interference, as well as defends them against such claims. Employment and labor law is ever-changing. Employers need to feel secure in how they manage their employees so they can focus on their business. Ms. Batista affords her clients that security.
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