A final rule from the Department of Labor includes PTs and PTAs among the health care providers whose employers — depending on the setting — could opt to deny expanded sick and FMLA leave.
In this review: U.S. Department of Labor, Temporary Rule: Paid Leave under the Families First Coronavirus Response Act
Fact sheet: employee paid leave rights
Fact sheet: employer paid leave requirements
Families First Coronavirus Response Act: Questions and Answers
Emergency paid sick leave and expanded family and medical leave provisions will be implemented broadly in response to the COVID-19 pandemic, but PTs, PTAs, and other health care providers employed in certain settings can be prevented from receiving the additional relief if their employers say so: That's how the U.S. Department of Labor has laid out its plans for implementing the Families First Coronavirus Response Act signed into law on March 18. The exemption provisions could also be applied to first responders.
At issue is a requirement in the Families First Act that employers with fewer than 500 employees provide up to 80 hours of paid sick leave and additional FMLA leave related to COVID-19—and in particular, instances in which an employer would have the option to exempt employees from the extra leave provisions. In health care, DOL is allowing that option to be exercised by employers from a list of health care settings, to be applied on a case-by-case basis to any of their health care providers.
For the physical therapy profession, the term "health care provider" is key, because PTs and PTAs fall into that category for purposes of the rule.
The rule provides the exemption option to employers in the following settings:
- Doctor’s office.
- Health care center.
- 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.
- Facility that performs laboratory or medical testing, pharmacy, or "any similar institution."
The list applies to any permanent or temporary institution, and extends to any listed setting that contracts with a health care provider or contracts with an entity that employs a health care provider. Bottom line: PTs and PTAs employed or under contract with a facility on the list could face the possibility of being exempted from receiving the additional leave.
It's Optional and Intended for Case-by-Case Use
According to the DOL, the agency is encouraging employers to be "judicious" in use of the exemption "to minimize the spread of the virus associated with COVID-19." Additionally, DOL says that the exemptions are intended to be used on a "case-by-case" basis, meaning that employers could apply the exemptions to certain types of health care providers and allow others to receive the extended benefits.
It's Not the Only Exemption Path
The requirements to provide the extended leave don't apply to business with 500 or more employees, and employers with 50 or fewer employees can apply to opt out if providing the extra leave would jeopardize the viability of the business.
The "Health Care Provider" Definition is Intentionally Broad
In the rule DOL states that it considered using a more narrow definition of "health care provider," but decided to go with the broad definition to give employers flexibility to maintain staffing to respond to the health emergency. According to DOL, a more narrow definition could leave health care facilities without staff to perform critical services needed to battle COVID-19.