Local governments are permitted to exclude employees from the
FFCRA based on the employee's status as an Emergency Responder, or as providing Essential Government Functions. The US. Department of Labor (DOL) has the authority to exclude certain health care providers and emergency responders from the definition of employee under sections of the Act, and the Governor has the authority to exclude those providing essential government functions.
From the DOL FFCRA Q&A:
57 - Who is an emergency responder? For the purposes of Employees who may be excluded from both Paid Sick Leave or Expanded Family and Medical Leave by their Employer under the FFCRA, an emergency responder is anyone 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.
Governor Lee issued guidance via Executive Order 22 on which positons constitute Essential Government Functions to further guide cities on identifying which positions may be excluded from the FFCRA provisions in order that all critical infrastructure remains operational, and government entities and businesses will continue providing important and esential services. The Governors expansion of defined Essential Government Functions can be found in the document titles Attachment A to Executive Order No. 22 (page 8, item #5).
Once a municipality determines which functions are to be categorized as essential, and which emergency responders are required to provide and/or support the provision of such functions, it should take appropriate action under its particular form of government to document those positions it is excluding from coverage. The DOL advises that employers be judicious when determining exclusions, and do so based on actual job functions.
