April 23, 2020

Question: Are deathcare professionals (funeral homes, cemeteries and crematories) exempt under the newly created paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”)?

Answer: Recently, under the Families First Coronavirus Response Act (FFCRA), the right to Emergency Paid Sick Leave was widely expanded for American workers during the pandemic. Although the provisions of FFCRA apply to any employer with UNDER 500 employees automatically, the expanded FFCRA also allows employers with under 50 employees the chance to opt out of FFCRA upon applying for a waiver to the Department of Labor (DOL).

ICCFA has been working with the DOL in an effort to clarify that deathcare workers and supporting industries are included as exempt. As of the time of this writing, the DOL, as well as other deathcare associations, have agreed verbally that those in the deathcare profession would be part of the ‘emergency responder’ classification outlined by the DOL.

This is based on the interpretation that due to the essential role deathcare professionals play, they are emergency responders for purposes of new paid sick and expanded family leave benefits created by the Families First Coronavirus Response Act (FFCRA). This interpretation is based on DOL guidance on FFCRA, where the DOL describes ‘emergency responders’ as anyone that transports COVID-19 patients and also provide specific care in a declared emergency. The deathcare profession continues to transport and handle bodies affected by COVID-19 and, under U.S. Department of Homeland Security, through its Cybersecurity and Infrastructure Security Agency (CISA), deathcare professionals are recognized as health care workers under critical infrastructure guidance to states.

Through this interpretation, deathcare professionals, funeral homes, cemeteries, as well as crematories, would be classified as exempt, allowing access to all of their resources, including man and woman power, to handle COVID-19 victims and other decedents. While this interpretation has not been put in writing from the DOL, ICCFA continues to work with the DOL on the issue.