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A Potential Childcare Disruption for Rehired Employees

Client Alert
May 14, 2020

As businesses reopen, employers with fewer than 500 employees need to brush up on the FFCRA Paid Leave rules, including a potential disruption to your return to operations. 

Under the FFCRA, employees may be eligible for up to 80 hours of Emergency Paid Sick Leave, and up to 12 weeks of paid Emergency Childcare Leave. The eligibility and use of Childcare Leave have presented the most questions. Check out Bryan Meek’s article about summer vacations. 

Under the FFCRA and the Department of Labor guidance, employees would be eligible for Childcare Leave only if the employer had them on its payroll for at least 30 calendar days immediately prior to the day leave would begin. 

Many of the reinstated employees have been on unemployment, rather than the employer’s payroll for the past month or so.  

Does this mean the rehired employees are not eligible for Childcare Leave until they work for at least a month? Not necessarily. 

Why? Under the CARES Act, Congress added a loophole for rehired employees. If an employee was laid off on or after March 1, 2020 and is then rehired, the employee is immediately eligible for Childcare Leave if the employee worked 30 of the last 60 calendar days prior to layoff. 

What is the concern? An employee can return to work as part of a rehire program for one day, and then go on 12 weeks of a combination of Emergency Sick Leave and Emergency Childcare Leave paid at a 2/3 rate up to $200 per day. 

What should employers do? The Childcare Leave process is designed to be interactive. Engage in an interactive process with your employees about their scheduling and childcare needs. You can remind employees that the childcare disruptions will likely extend into the next school year, so it’s wise to conserve the leave for when it is absolutely necessary. 

For additional questions, please contact Jeffrey Miller 216.658.2323 or any member of the Labor + Employment Team of BMD.  

child care;FFCRAcovid-19coronavirusCARES Actchildcare leaveDOL
Client Alert

UPDATE - SBA Releases Rules and Guidance for Second Round PPP Funding

January 7, 2021Late yesterday (January 6, 2021), the U.S. Small Business Administration released rules and guidance for businesses wishing to take part in the long awaited second round of Paycheck Protection Program (“PPP”) funding. As most businesses are aware, the rules governing PPP loans have been updated as part of The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (“Act”). The Act was just one section of the massive 2021 Consolidated Appropriations Act that was passed by Congress and signed into law by the President on December 27, 2020. To combat the ongoing disruptions caused by the COVID-19 pandemic, the Act generally provides (a) first time PPP loans for businesses that did not obtain a loan in the first instance, (b) PPP second draw loans for businesses that already obtained a loan but need additional funding, and (c) additional funding for businesses that returned their first PPP loan or did not get the full amount for which they qualified.Client Alert

UPDATE - Vaccine Policy Considerations for Employers

January 4, 2021If you read our post from November, you’re already an informed employer. This first post of 2021 is to share good news, give a few updates, and answer some other common questions. Q: What’s the Good News? First, the EEOC confirmed that employers may require employees receive the COVID-19 vaccine. Second, polling indicates that the number of Americans who said they will receive a vaccine has increased from around 63% to over 71%. The number of Americans who are strongly opposed to a vaccine is about 27%. Third, initial returns show that the efficacy rate for certain vaccines is as high as 95% for some at-risk recipients.Client Alert

Changes to FFCRA Paid Leave: Congress’ Revisions to Employment COVID-19 Leave Benefits Signals the Light is at the End of the Tunnel

December 28, 2020Late in the evening on December 27th, President Trump signed into law the government’s $900 billion COVID-19 relief package (the “Stimulus Bill”). Among other economic stimulus benefits, the Stimulus Bill contains the $600 stimulus checks that will be issued to eligible individuals as well as, relevantly, changes to the Families First Coronavirus Response Act (“FFCRA”). The FFCRA was implemented in April 2020 and provided benefits to individuals who missed work as a result of an actual or suspected COVID-19 illness or to care for a child when their school or childcare service was closed because of COVID-19. Importantly, the Stimulus Bill extends eligibility for employer payroll tax refunds for leave payments made to employees on or before March 31, 2021 under the FFCRA, signaling to the American people that Congress believes many of the employed public will be vaccinated by this time, the light at the end of the tunnel. However, the Stimulus Bill does contain a caveat that employers are no longer required to provide FFCRA leave benefits after December 31, 2020, but if they do, they will receive the payroll tax credits, up to the maximums provided in the FFCRA, for payments made prior to April 1, 2021. Below we provide a list of questions and answers we received to date following the passage of the Stimulus Bill. We expect the U.S. Department of Labor (“DOL”) to issue additional questions and answers as the Stimulus Bill is implemented, and we will update this Client Alert as these are received.Client Alert

Healthcare Speaker Programs: New OIG Alert

December 11, 2020In a rare Special Fraud Alert issued on November 16, 2020 (the “Alert”), the Office of Inspector General (“OIG”) urged companies who host speaker programs to reassess their programs in light of the “inherent risks” associated with these activities. The Alert reports that, in the last three years, drug and device companies have reported paying nearly $2 billion to health care professionals for speaker-related services.Client Alert

Value-Based Care Advances – CMS Issues New Final Rules for Stark and Anti-Kickback Statutes

December 11, 2020The Centers for Medicare & Medicaid Services (“CMS”) and the Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) issued two highly anticipated (and quite extensive) Final Rules to reform the Stark Law and Anti-Kickback Statute (“AKS”) regulations. The Final Rules generally take effect on January 19, 2021. The Final Rules include new safe harbors for the AKS and new exemptions to the Stark Law to allow for greater flexibility. According to the HHS, the goal of updating both laws is to make it easier for providers to engage in care coordination and value-based care programs without running afoul of the statutes. Please note that this client alert could not cover the full extent of the Final Rule changes so please contact your BMD Healthcare attorney with questions.
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