Alan A. Ayers, MBA, MAcc is Chief Executive Officer of Velocity Urgent Care and is Senior Editor, Practice Management of The Journal of Urgent Care Medicine.
Urgent message: The Families First Coronavirus Act creates an obligation for small- and medium-sized businesses to pay employees who take time off work for specified reasons caused by the COVID-19 pandemic. Affected employers must be prepared to implement the Act’s leave programs on or before April 2, 2020. Urgent care operators need to understand the implications, including which employees are covered, and adapt their HR policies accordingly.
Under the new law, employees are entitled to paid time away from work due to the following:
- The employee is subject to a quarantine or isolation order related to COVID-19
- The employee has been advised by a healthcare provider to self-quarantine due to COVID-19
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis
- The employee is caring for someone ordered by a healthcare provider to isolate or quarantine themselves
- The employee is caring for a son or daughter whose school or place of care is unavailable due to COVID-19 precautions
Note that the Act, as passed, does not allow employees to claim the Emergency Paid Sick Leave benefit if they are self-quarantining, or if their employer sends them home, or if they are simply afraid of contracting COVID-19 at work or outside.
On March 19, 2020, the United States Senate passed and the president signed a revised version of House Bill 6201, known as the Families First Coronavirus Act. In addition to provisions that expand food assistance, unemployment benefits, and veterans benefits, and require insurers to provide free COVID-19 testing, the act enables paid leave for employees who are either quarantined due to the COVID-19 virus, who are caring for family members who are ill, or who have childcare obligations if a school or daycare is closed due to COVID-19.
Key provisions of the legislation, which may be cited as Emergency Family and Medical Leave Expansion Act, start 15 days after the president’s signing (which would be April 2, 2020) and remain in effect through December 31, 2020, include:
- Applies to employers with at least one but less than 500 employees.
- U.S. Department of Labor regulations may exempt small businesses with fewer than 50 employees when the provision would jeopardize the viability of the business as a going concern. The Department of Labor regulations have not yet been defined.
- There are two components of the act:
- Emergency Paid Sick Leave Benefit:
- Full-time employees are entitled to 80 hours paid sick time.
- The 80 hours is available right away; there is no accrual of these hours.
- Employers may not require employees to use other leave before using paid sick leave.
- Part-time employees are entitled to sick time equal to the number of hours worked, on average, over a 2-week period.
- Unused paid sick leave does not carry over from one year to the next.
- Changes to the Family Medical Leave Act:
- Enables up to 10 weeks of paid leave and 2 weeks of unpaid leave (12 weeks total).
- Employees must be employed at least 30 days before the leave request.
- Note that this is a much lower threshold than the 12 month/1,250-hour tenure requirement that otherwise applies to FMLA leave.
- Emergency Paid Sick Leave Benefit:
- Compensation must be at the greater of the employee’s regular rate of pay or the federal/state minimum wage, subject to the following limitations:
- Paid sick time shall not exceed $511 per day or $5,110 total if the sick time is because of COVID-19 isolation, quarantine or symptoms.
- Paid sick time shall not exceed $200 per day or $2,000 total for any other permitted use (ie, inability to secure childcare).
- Under the FMLA provisions, when leave is needed due to a school or daycare closure, the employer can provide the first 10 days of leave unpaid, then subsequent absences for this reason must be paid at 2/3 the employee’s regular rate of pay. The Act includes a cap of $200 a day and $10,000 in aggregate. If the first 10 days are unpaid, an employee may elect to substitute any accrued vacation leave, personal leave, or medical/sick leave for the unpaid leave.
Failure to pay employees for sick leave or terminating them as a result of a request for leave may constitute violations of the Fair Labor Standards Act. Additionally, employers must post a notice concerning these rights.
Monies paid under these requirements may be refundable to the business in the form of a credit against other employment-related taxes. If the credit exceeds the employment taxes, then it will be treated as an overpayment subject to refund.
Some key considerations for urgent care providers:
- The Act allows employers who employ employees who are “Healthcare Providers” (HCPs) to self-declare that those HCPs are exempt from both the Emergency Paid Sick Leave provisions and the changes to the Family and Medical Leave Act.
- Employees must be unable to telework. Few of the duties, like registering and triaging patients or taking x-rays, in a patient-facing urgent care center can be done remotely.
- The definition of which of your employees are HCPs is the same as that used for the existing FMLA definition (even though this new provision does not come under FMLA.) That means employees who are an MD, DO, podiatrist, dentist, clinical psychologist, optometrist, chiropractor, nurse practitioner, nurse-midwife, clinical social worker, physician assistant, or any other healthcare provider from whom the employer (or its insurance plan) would accept a certification of a serious health condition for purposes of FMLA.
- Although nurses are not mentioned in the FMLA statute or regulation, for most employers, they would be HCPs for purposes of emergency leave.
- Urgent care employs “critical” positions (required for the operation to function) such as practice managers, medical assistants, x-ray techs, and front desk representatives. Although they work alongside “providers” and are classified as “healthcare workers,” they are not defined as such under FMLA and thus the new law does not permit them to be excluded from coverage.
- While FMLA does have “key employee” provisions, which go more to the right of reinstatement rather than the right to take leave, there are no such exclusions even for key employees under the new law. This means management and executives likely may not be exempted.
- Employers can pick and choose among HCPs for exemption (for example, all nurse practitioners) depending on the needs of the business and the staffing particularities of each facility.
The Act covers employees who are told by a healthcare provider to self-quarantine. If a healthcare provider instructs an employee to self-quarantine, they are covered by Emergency Paid Leave. But if it’s just you as an employer telling them to self-quarantine, you do not need to pay hourly, nonexempt employees you have sent home. If you have sent home salaried exempt employees, you still need to pay them for the entire week if they have worked any part of the week; if they work no part of the week you do not need to pay them.
Nothing in the leave provisions is retroactive, and until the effective date of April 2, 2020 you should continue handling employees who are sick or out on family leave exactly the way you are handling them now. Until the law becomes effective, for example, an employee who is out to care for a son or daughter home due to school closure would take PTO or, if your policy permits, sick leave—or go unpaid.
You can always choose to be more generous than this, but it would be on your dime; you would not get the tax credit to help pay for it. Remember, also, that short-term disability policies always have a waiting period.
Urgent care operations with fewer than 500 employees are likely going to be required to provide paid leave to employees who are unable to work because of certain circumstances relating to the COVID-19 pandemic. Many urgent care operators are actively assessing whether their existing paid sick and leave benefits adequately support employee needs in this unprecedented public health crisis and adjusting benefits as appropriate for their business and in compliance with the new law.