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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.

Changes to Medicare’s Physician Fee Schedule and Outpatient Prospective Payment System

Come the beginning of 2022, both the Medicare Physician Fee Schedule (“MPFS”) and Outpatient Prospective Payment System (“OPPS”) will look a little different. As a refresher, the MPFS lists the fees associated with reimbursement of services to providers at certain facilities, taking into account geography and costs. By contrast, OPPS sets reimbursement rates for hospitals and community mental health centers for outpatient services, which are determined in advance. A summary of some of the more pertinent changes to each rule will be outlined below.

CMS to Once Again Reprocess Outpatient Clinic Claims

The Hospital Outpatient Prospective Payment System (OPPS) Rule was passed in November 2018, which was intended to prevent the Centers for Medicare and Medicaid Services (CMS) from paying more for services rendered in outpatient settings than what they paid for the same services rendered in physician offices that are simply owned by hospitals or health systems.[1]

New Vaccine Requirement for Select CMS-Participating Facilities

On November 4, 2021, the Centers for Medicare and Medicaid (“CMS”) released a new rule requiring certain healthcare facilities to implement policies requiring employees to be vaccinated against COVID-19. It does not matter if a staff member does not perform patient treatment services, they must still be vaccinated if an employee of an applicable facility.

OSHA COVID-19 EMERGENCY TEMPORARY STANDARD (ETS) Vaccination, Testing, Recordkeeping, and Reporting

The Occupational Safety and Health Administration has issued its long-awaited COVID-19 Emergency Temporary Standard (ETS). Note that the ETS does not apply to employers covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors or Subcontractors (see here), or to settings where employees provide healthcare services subject to OSHA’s ETS for the healthcare industry (see here).

Interesting Trends Revealed in 50-State Medicaid Budget Survey

Results of the KFF annual survey of state Medicaid directors reveal some fascinating trends in Medicaid service delivery and benefit coverage. Read on for a summary of the highlights we find most noteworthy. Background As a preliminary matter, many of the trends KFF identifies and that we highlight below are no doubt a result of the Covid-19 pandemic. The pandemic triggered a public health emergency and economic crisis that resulted in increased Medicaid enrollment, service offerings, and flexibility in service delivery, along with a heightened awareness of disparities in access to care and health outcomes.