In August, a federal judge… This text opens a new tab to the article on FFCRA exemptions… called the Department of Labor’s (DOL) interpretation of the healthcare exemption and other Families First Coronavirus Response Act (FFCRA) rules into question, throwing a wrench into the plans of dental practices that were hoping to exempt their businesses from the paid-leave requirements of that law.
Without guidance on what shape the DOLs response to that decision would ultimately take, the HR experts in CEDR’s Solution Center could only ask practice owners and managers to sit tight and avoid claiming the exemption until more guidance became available.
Well, the wait is officially over.
In mid-September, the DOL made adjustments to the ways in which it would enforce certain portions of the FFCRA per the judge’s order, though they did not accept all of the recommendations that came out of that court ruling. The new DOL rules went into effect on September 16, 2020. There is a high likelihood that the courts will challenge the DOL again.
We’ll summarize a few key points here, but you can read the full update on the CEDR blog… This text opens a new tab to the article on FFCRA exemptions….
First off, we should note that we’ve heard from several office managers and practice owners that they have been advised to implement a new policy which excludes all of their employees from FFCRA payments.
Not only is it unnecessary to implement a permanent policy change related to this temporary emergency leave law (the provisions of the FFCRA are currently set to expire at the end of the year), it’s also illegal per the updated exemption criteria.
Read on to learn why.
The healthcare exemption
Under the DOL’s original interpretation of the law, any employee who worked for a healthcare provider (including dentists) in any capacity could be denied FFCRA paid leave on the basis of the law’s healthcare exemption.
Not surprisingly, the judge determined that this interpretation was far too broad and recommended that the DOL adopt the definition of “healthcare provider” provided by the Family and Medical Leave Act (FMLA).
If the DOL had chosen to adopt this definition, that would have limited the healthcare exemption to high-level independent providers such as doctors and surgeons. But the agency decided to go with a definition that is not quite so broad as its original interpretation but is also not as narrow as the one offered by the FMLA.
Rather, the DOL decided that it was important to provide the exemption for employees whose “services are important to combating the COVID-19 public health emergency and are essential to the continuity of operations of our health care system in general.”
This updated definition now allows employers in the dental field to exempt certain clinical employees from the FFCRA. It does not allow dental employers to exempt their administrative staff from paid leave requirements, however.
This updated definition may still be called into question again in the future, so it is important that you document any FFCRA requests that come in from any of your employees, as well as your decision-making process for either approving or denying that leave.
You can use CEDR’s free HR VaultⓇ software… This text opens a new tab to the HR Vault website… to easily document those requests and your related decisions. You’ll find a free FFCRA request form that will make this process much easier from an administrative perspective pre-loaded in your free HR Vault account.
Of course, the updated healthcare exemption is a bit more nuanced than the summary presented in this blog. You can read more on the specific requirements of the updated FFCRA healthcare exemption here… This text opens a new tab to the article on FFCRA exemptions….
Small business exemption
Many employers may be tempted to assume that, because they have fewer than 50 employees, their business automatically qualifies for the small business exemption… This text opens a new tab to the article section on employers and exemptions… provided under the FFCRA for employees who do not meet the requirements of the healthcare exemption.
Unfortunately, for the vast majority of practices, this is simply not true… This text opens a new tab to the article section on employers and exemptions….
In order to qualify for this particular exemption, an employer would need to be able to prove that financial hardship would prevent them from offering FFCRA paid leave to employees upfront, and could actually put the operation of their business in jeopardy while they waited for reimbursement in the form of tax or cash credits… This text opens a new tab to the article section on tax credits….
But, since reimbursement for those payments typically comes back to employers within a matter of days, the case for small business exemption will be extremely hard to make for the vast majority of business owners.
The question of whether or not employers have to make emergency paid leave under the FFCRA available to their eligible employees on an intermittent basis… This text opens a new tab to the article section on intermittent leave… (meaning providing that leave in small daily or hourly blocks as opposed to employees using leave all at once) was also addressed by the new DOL update.
In very general terms, the agency’s determination was this:
- Leave does not have to be made available on an intermittent basis when an employee cannot work as a direct result of actual or potential COVID infection or exposure (e.g., they are sick and awaiting diagnosis or are caring for someone who has the disease).
- Leave must be made available on an intermittent basis under certain circumstances related to a lack of available child care or schooling due to COVID 19.
Whether or not leave should be made available intermittently depends on a number of factors, including what sort of child care and schooling options are available to affected children and their parents. You can find additional details on intermittent leave criteria here… This text opens a new tab to the article section on intermittent leave ….
The DOL’s updated guidance regarding paid leave under the FFCRA changes the way that the healthcare exemption can be applied by dental professionals and, as of now, makes that exemption available to clinical dental employees but not administrative staff. Therefore, exempting your entire office from paid leave requirements under the healthcare exemption is not likely going to be an option for most dental practices.
Further, the available small business exemption will not help most employers, either, as employers will need to be able to prove severe financial hardship that would prevent their business from operating “at a minimal capacity” if emergency leave were provided. This is a high bar to meet since employers typically receive tax credits for those payments within a matter of a few days.
Employers should therefore think carefully about denying emergency leave to their employees when a request comes in and should document those requests as well as their decision-making process… This text opens a new tab to the HR Vault… for each and every claim.
And remember – even though denying leave may help you avoid paying out in the short term, it will not fix your problems related to being short-staffed, and reimbursement for FFCRA payments typically arrives within a few days. Therefore, if you are able to make emergency payments without putting your business at risk, it’s probably in your best interest to do so.
In addition to providing updated definitions for the healthcare exemption under that law, the updated FFCRA guidance from the DOL also covered a number of other issues, including whether FFCRA should be made available to employees when work is unavailable (e.g., in the event of another temporary office closure or employee layoffs) as well as when leave must be made available on an intermittent basis.
To read more about how these updates will affect your dental practice, read the full FFCRA update from CEDR here… This text opens a new tab to the full article on FFCRA healthcare exemptions….