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

Late on December 27th, President Trump signed into law the government’s $900 billion COVID-19 relief package (the “Stimulus Bill”). Among other economic benefits, the Stimulus Bill implements changes to the Families First Coronavirus Response Act (“FFCRA”).

It is still set to expire on 12/31/2020; however, employers can voluntarily extend and take advantage of payroll tax credits until March 31, 2021.

In April of 2020, the FFCRA began providing paid leave to employees 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. For a full review of the FFCRA, please see our posts from March and April, including https://www.bmdllc.com/resources/blog/ffcra-update-implementation-date-accelerated-from-april-2-to-april-1/

In short, employees could receive up to 80 hours of paid sick leave and another 12 weeks of family leave (with 10 weeks paid). Employers received payroll tax credits/refunds for the paid leave. That law is set to expire on December 31, 2020.

The Stimulus Bill extends eligibility for employer payroll tax credits/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. 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.

  1. Where can I find additional information on eligible employees, eligible employers, and the maximum benefits that are eligible for reimbursement as payroll tax credits?

Answer: Please use this link to access our original publication on the specific details, requirements, and eligibility criteria for the FFCRA. https://www.bmdllc.com/resources/blog/ffcra-update-implementation-date-accelerated-from-april-2-to-april-1/

  1. Are employers required to continue to offer FFCRA COVID-19 leave benefits to employees after December 31, 2020?

Answer: No. The Stimulus Bill only extends the payroll tax credit eligibility date to March 31, 2021. Meaning, employers are not required to give FFCRA leave benefits to employees after December 31, 2020. However, if they do, employers will continue to be eligible for payroll tax refunds, up to the maximums provided, for any payments made to employees under the FFCRA between January 1, 2021 and March 31, 2021. This also means that employers may choose which parts of the FFCRA they will utilize for leave benefits. For example, employers can choose to allow employees to take sick leave under the Emergency Paid Sick Leave Act (“EPSLA”), but do away with the leave benefits provided under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Employers will need to carefully consider which benefits they will continue to offer, if any.

  1. Should employers revise their COVID-19 employment leave policies to reflect the changes in the Stimulus Bill?

Answer: Yes. Once employers determine which leave benefits they will continue to offer, they will need to revise all COVID-19 employment leave policies to reflect these changes and their effective dates. Even if an employer will continue to offer all benefits, we recommend revising the leave policies to reflect that such benefits will automatically terminate on March 31, 2021 as this is the final date employers will be eligible to receive payroll tax credits for the leave payments made to employees.

  1. Does the Stimulus Bill provide additional leave time to employees who exhausted all previous COVID-19 leave time?

Answer: No. If employees previously exhausted all leave time under EPSLA (up to 80 hours) and EFMLEA (up to 10 weeks), they are no longer eligible for benefits under the FFCRA. Therefore, these employees will need to utilize PTO/sick time or an unpaid leave of absence if they need to miss work because of COVID-19. The only caveat to this is for employers that have Family Medical Leave Act (“FMLA”) policies. If one of these employers uses a calendar year benefit renewal, rather than a rolling year benefit renewal, employees are going to receive additional time under the FMLA beginning on January 1, 2021. Meaning, if these employers continue to allow leave under EFMLEA through March 31, 2021, employees would receive an additional 10 weeks beginning on January 1, 2021. If you have additional questions regarding this caveat, please contact us directly.

  1. Are any states implementing their own versions of COVID-19 employee leave policies that must still be followed after December 31, 2020?

Answer: The following states have implemented with specific COVID-19 employee leave laws and/or guidance. If you employ employees in these states, please consult with your employment counsel to discuss requirements under these state laws. Please also be advised that a number of large cities within these states have also implemented their own COVD-19 employee leave laws and/or guidance.

Arizona, California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico (Bernalillo County only), New York, Oregon, Rhode Island, Texas (Austin, Dallas, San Antonio only), Vermont, Washington, Washington D.C.

For questions, please contact Jeffrey Miller at jcmiller@bmdllc.com or 216.658.2323 or Bryan Meek at bmeek@bmdllc.com or 330.253.5586, or contact any member of the BMD Employment & Labor Law Practice Group.

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”