Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Families First Coronavirus Act (“FFCRA”) Under Attack

In response to the COVID-19 global pandemic, the Families First Coronavirus Act (“FFCRA” or “the Act”) went into effect on April 1, 2020 followed closely behind by the Department of Labor’s (“DOL”) Final Rule on the Act which, collectively, describe the obligations of employers as well as the rights of employees under the FFCRA’s paid sick time and expanded family medical leave provisions.

In response to a legal challenge to the FFCRA by the State of New York, on August 3, 2020, a judge out of the Southern District of New York (“SDNY”) issued a decision vacating certain provisions of the DOL’s regulations. The SDNY Court found the following:

  • The FFCRA’s definition of “health care provider” is “overly broad” as it encompasses employees “whose [workplace] role bears no nexus whatsoever to the provision of healthcare services;”
  • An employer’s ability to provide an employee work to complete may no longer be considered relevant in assessing eligibility for FFCRA leave;
  • Under certain circumstances, an employee may take intermittent FFCRA leave without first obtaining employer approval;
  • The FFCRA’s notice requirement — obligating an employee to submit notice of intent to take leave prior to actually taking it — is not practicable and therefore, in some instances, may be waived, allowing employees to submit notice after their leave begins.

While attacks on the legality of the FFCRA have been levied since its passage by Congress, this is the first official decision handed down by the judiciary. With that said, the SDNY decision is limited in scope as it applies only to that jurisdiction — leaving open the issue of how other courts, as well as the Department of Labor, will respond to the FFCRA challenges.

As questions, concerns and legal guidance continue to evolve with the changing times, it is essential for employers to stay informed. If you need assistance with any issues arising from the COVID-19 pandemic, please contract Jeffrey C. Miller (216.658.2323 | jcmiller@bmdllc.com) or Bryan Meek (330.253.5586 | bmeek@bmdllc.com), or any member of the Labor and Employment Team of Brennan, Manna & Diamond LLC.

Vaccination Considerations for Employers

Today, three Covid-19 vaccines have tested as highly effective (90%+ efficacy) and are advancing in the process for emergency use. This is especially welcome news in Ohio, which has skyrocketing cases and our strategic response has been to turn the entire state into the small town of Bomont with strict curfews and bans on social gatherings.

Did You Receive More than $750,000 in Provider Relief Funds?

The Provider Relief Funds (“PRF”) - authorized under the CARES Act - has been a vital tool for health care providers during the COVID-19 public health emergency. These funds have allowed providers to stay open and continue to offer care during these pressing times. While helpful, these funds do come with several important obligations. First, fund recipients are required to comply with certain record-keeping requirements as well as comply with certain balance billing prohibitions. See our Client Alert. Second, fund recipients are required to report their intent, use of funds, and other data elements, which helps promote transparency to the federal government. Please see our Client Alert on provider relief fund reporting requirements. Third, and perhaps a new concept for many providers, fund recipients of more than $750,000 must undergo a “single audit” to ensure program compliance and appropriate use of funds.

Important Updates Every Provider Should Know: Information Blocking

In December 2016, Congress passed the 21st Century Cures Act (“Cures Act”) which: (1) authorized funding for the National Institutes of Health to promote medical research and drug development, (2) implemented provisions aimed at addressing the prevention and treatment of mental illness and substance abuse, and (3) reformed certain standards of the Medicare program and federal tax laws to foster healthcare access and quality improvement.

PPP Update: Loan Necessity Questionnaires

On October 26, 2020, the Small Business Administration (“SBA”) published a notice in the Federal Register which foreshadowed the release of two new forms seeking information from for-profit and nonprofit organizations that received Paycheck Protection Program (“PPP”) loans of $2 million or more. If approved, the SBA would use information from these forms to evaluate and determine whether economic uncertainty made a PPP loan request necessary.

Exposure to COVID-19 Flow Chart

Exposure to COVID-19 Flow Chart