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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.

COVID, Privacy and More! New Challenges for Physicians in 2021

While hopefully we are coming out of the pandemic, the legal repercussions related to legislative initiatives and other actions during that time continue to apply to businesses in general and healthcare practices. It is a helpful reminder that practices make certain that they maintain accurate records in order to satisfy the reporting requirements under the various COVID-related bills and protect yourself from future employment claims.

Banking and Cannabis: Bank Lending, The Next Frontier

A fortuitous combination of developments and circumstances present the banking and cannabis industries a large opportunity to enhance each of their respective bottom lines: conventional bank lending, payment processing, treasury management and other services, and bank administered SBA and revenue bond financing to cannabis businesses.

EKRA Updates: COVID-19 Testing, Employment Agreements, and More

Ever since the Eliminating Kickbacks in Recovery Act (“EKRA”) was passed by Congress in 2018, we have been waiting to see how the law is interpreted and ultimately enforced. As a reminder, EKRA seeks to eliminate kickbacks in return for patient referrals to facilities that treat those overcoming addiction, such as recovery homes, clinical treatment centers, and laboratories. (NOTE: EKRA applies to all laboratories, not just those related to addiction treatment.) It is essentially an expansion of the Anti-Kickback Statute, which only applies to those services that are reimbursable through federal healthcare programs such as Medicare and Medicaid, to now also cover services reimbursable through private insurers.

New Interpretation of the Fair Debt Collection Practices Act Rocks the Industry

It’s not lost on us that our interpretation of § 1692c(b) runs the risk of upsetting the status quo in the debt-collection industry. This quote from the Eleventh Circuit Court of Appeal in its April 21, 2021 opinion from the case of Hunstein v. Preferred Collection and Management Services, Inc. is possibly the biggest understatement in the history of the Fair Debt Collection Practices Act. At a minimum, the Eleventh Circuit’s opinion has sent shockwaves and fear throughout multiple sectors of the financial services industry.

Construction Industry Trends and Predictions Through 2021 and Beyond: Insurance and Emerging Threats

A 2021 survey identified three key issues impacting the construction industry in 2021: (1) the financial health of contractors; (2) the continuing risk of the pandemic; and (3) technology driving productivity, but also increasing the risk of cybersecurity threats. With this backdrop, insurance premiums in the construction industry are generally on the rise in 2021.