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April 8 2020

Attention Public Employers: Family First Coronavirus Response Act and How it Applies to You and Your Employees

By: Benjamin C. Dilley, Nathaniel R. Wolf, and Nikole L. Canute

On April 1, 2020, the Families First Coronavirus Response Act (the “FFCRA”), which included the Emergency Family and Medical Leave Expansion Act (the “FMLA Expansion Act”) and the Emergency Paid Sick Leave Act (the “EPSLA”), went into effect. The FFCRA provides an extra layer of complexity for public employers, especially when considered in light of increased unemployment benefits, short-term disability, workers compensation and paid medical leave under Michigan law.  Please read our prior Client Alert summarizing the FMLA Expansion Act and the EPSLA

The FFCRA makes clear that it applies to all public employers and private employers with fewer than 500 employees, but public employers should be aware of certain provisions specific to them.

Public Employers Will Not Receive Payroll Tax Credits

Both the FMLA Expansion Act and the EPSLA provide reimbursable tax credits to employers.  Specifically, Sections 7001 and 7003 of the FFCRA provide refundable tax credits equal to 100 percent of the qualified paid sick leave wages and paid family medical leave paid by an employer for each calendar quarter.  However, subpart (e)(4) of those sections excludes public employers from receiving these payroll tax credits, stating:

This credit shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing.

Accordingly, while public employers are required to provide the paid leaves to eligible employees with qualifying reasons, public employers will not be reimbursed by the government for those leaves.

Certain Health Care Providers and Emergency Responders Exempt from Paid Leave

Both the FMLA Expansion Act and the EPSLA state that an employer of an employee who is a “health care provider” or an “emergency responder” may elect to exclude that employee from the paid leave requirements.

On April 1, 2020, the U.S. Department of Labor - Wage and Hour Division released temporary regulations to implement the FMLA Expansion Act and the EPSLA.  These rules are effective through December 31, 2020.  The DOL’s rules define “health care providers” and “emergency responders” for purposes of the exemptions.  Section 826.30(c)(1) defines “health care provider” as:

[A]nyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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.

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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.

Section 826.30(c)(2) defines “emergency responders” as:

[A]nyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to 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, child welfare workers and service providers, 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 whom 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.

It is important that a public employer analyze the services its employees provide in order to determine whether or not either of these definitions apply.  If an employee falls within the definition of either “health care providers” or “emergency responders,” the public employer will have to affirmatively choose to exempt those employees from being eligible for federal paid leave. Because employees that fall within those definitions will not automatically be exempted, public employers should not wait for an employee to request paid leave under the FFCRA.

Possible Alternatives for Employees of Health Care Providers and Emergency Responders

While employers may exempt “health care providers” and “emergency responders” from receiving the federal paid leaves, that exemption does not affect these employees’ ability to obtain workers’ compensation benefits in connection with an injury suffered while on the job.  Indeed, Governor Gretchen Whitmer and the Michigan Department of Labor promulgated Emergency Rules regarding workers’ compensation coverage for first response employees.  Under those rules, a first response employee exposed to COVID-19 is presumed to have suffered a personal injury that arises out of and in the course of employment if the first response employee meets any one (1) of the following criteria:

  1. Is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure;
  2. Receives a COVID-19 diagnosis from a physician;
  3. Receives a presumptive positive COVID-19 test; or
  4. Receives a laboratory-confirmed COVID-19 diagnosis.

These Emergency Rules define a “first response employee” using six (6) definitions taken from existing sections of Michigan’s Public Health Code and other statutes, including persons working in a health facility or agency (MCL 333.1101 to 333.25211), in a health care organization (R 418.10108(x)), an industrial medicine clinic (R 418.10108(bb)), a practitioner (R 418.10109(l)), person working in a capacity described in the worker’s disability compensation act (MCL 418.161(1)(c)-(j)), and a member of the state police or an officer of the motor carrier enforcement division of the department of the state police.

Public employers whose employees would be considered first response employees under the Emergency Rules should be aware that those employees will possess a workers’ compensation claim should any of the above circumstances befall the employees.  Unlike other workers’ compensation claims, these employees will not be required to show a connection between the qualifying event and their job.

How Can We Help?

Federal, state and local governments are reacting to the challenges posed by COVID-19.  As legislation is passed and rules are enacted, our attorneys are standing by to assist.  If you have any questions on how these Acts/rules may affect your employees, please contact Nikole Canute, Ben Dilley, Scott Dwyer or Nate Wolf.