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FFCRA Update: Implementation Date Accelerated from April 2 to April 1

Update: The DOL issued its first round of guidance and accelerated the date of FFCRA implementation from April 2 to April 1, 2020. Employers with fewer than 500 employees will need to have policies and leave request forms in place by March 31, 2020 to take effect on April 1, 2020. This pertains to the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).

The Families First Coronavirus Response Act was signed into law on March 18, 2020, and provides several responses to address the ongoing coronavirus pandemic, including providing for free coronavirus testing, giving a boost to funding for state unemployment compensation (subject to states waiving work search requirements and the waiting week), and leave for employees affected by coronavirus through the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The FFCRA also provides refundable tax credits for employers providing the required paid family and sick leave to employees in connection with this public health emergency.

How disruptive is it?

  • The bill is effective April 1, 2020.
  • It expires on December 31, 2020.
  • The bill does not prevent employers from modifying their existing leave policies.
  • The bill does not prevent a legitimate Reduction in Force (RIF).

What should we do first?

  • Harmonize and update your leave policies with the new requirements.
  • Implement a record keeping procedure for tracking leave.
  • Contact your tax advisor.
    • The federal government is essentially asking employers to front continued wages for affected employees (up to either $12,000 or $15,510), with the promise to reimburse the employers 100% for those costs and related healthcare coverage costs through tax credits and/or refunds.  Please note that this is a simplified version of the complex advice provided by Chuck Mullen of Apple Growth Partners.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

EFMLEA temporarily amends the FMLA to provide leave related to the current coronavirus public health emergency.  It provides a new basis for leave for employees to care for their children while schools and childcare are closed.   

Who is now eligible for leave under EFMLEA?

Employees are eligible under EFMLEA after working for the employer for at least 30 calendar days.

  • There are no minimum hour requirements.

What employers are subject to EFMLEA?

Employers with fewer than 500 employees and government employers of any size must comply with EFMLEA.  The Department of Labor (DOL) has authority to exempt businesses with fewer than 50 employees if the requirements of this law would jeopardize their viability.

  • The DOL has not issued the exemption rules as of publishing. We will update.

What are the reasons for the use of leave under EFMLEA?

EFMLEA requires that employers provide leave to employees who are unable to work (or telework) because the employee is caring for a son or daughter under 18 due to coronavirus-related closure of school or childcare.

  • The Employee Survey provided in our previous post is the best tool to forecast the disruption.
  • Employees are still required to give practicable advanced notice of the need for leave.

How much leave is an employee entitled to under EFMLEA?

Eligible employees are initially entitled to 10 days of unpaid leave. 

  • Employees are given the election to us accrued leave or other forms of leave for the initial 10 days.
  • This will likely require a modification to all existing FMLA policies.

If the need for leave continues beyond 10 days, employees are entitled to paid leave based on their regularly scheduled hours, but at 2/3 of their regular rate of pay and with a cap of $200 per day and $10,000 in the aggregate. Once the cap is reached, any remaining leave up to the 12-week FMLA maximum need not be paid.  

Are employees required to provide documentation supporting EFMLEA leave?

The law is silent regarding documenting the reasons for leave.  The DOL may provide additional guidance.

  • Require employees to submit a written request.
  • Make sure to track all leave payments for applicable tax credits.

Is an employee entitled to return to work after EFMLEA leave?

Consistent with the FMLA, employers must return employees to an equivalent position when leave ends. EFMLEA adds a requirement for employers with fewer than 25 employees, if the position was eliminated because of the economic or operating conditions created by coronavirus. Those employers must continue to make reasonable efforts to restore the employee to an equivalent position for a one- year period. 

Emergency Paid Sick Leave Act (EPSLA)

EPSLA temporarily mandates that certain employers provide paid sick leave benefits for several types of coronavirus-related absences.  EPSLA can be utilized concurrently with the initial 2-week unpaid leave period under EFMLEA, if an employee is eligible for both forms of leave.

Who is now eligible for paid leave under EPSLA?

All full-time and part-time employees.

  • There is no minimum requirement for eligibility.

What employers are subject to EPSLA?

Employers with fewer than 500 employees and government employers of any size. 

  • EPSLA does not contain the same small business exception as EFMLEA

What are the reasons for use of paid sick leave under EPSLA? 

EPSLA requires that employers provide paid sick time to employees who are unable to work or telework because the employee:

(1) is subject to a coronavirus quarantine or isolation order,

(2) has been advised by a healthcare provider to self-quarantine due to coronavirus,

(3) is experiencing coronavirus symptoms and seeking a diagnosis,

(4) is caring for an individual subject to a coronavirus quarantine or isolation order or advised by a healthcare provider to self-quarantine due to coronavirus,

(5) is caring for their child due to coronavirus-related closure of school or childcare, or

(6) is experiencing any other substantially similar condition.  

Note that employers of health care providers or emergency responders may elect to exclude such employees from this leave entitlement.

How much paid sick leave is an employee entitled to under EPSLA?

Eligible full-time employees are entitled to 80 hours of paid sick leave.  Eligible part-time employees are entitled to paid sick leave equal to the number of hours they work on average in a two-week period.  Paid sick leave for reasons 1-3 listed above is based on an employee's full regular rate of pay, but is capped at $511/day or $5,110 in the aggregate.  Paid sick leave for reasons 4-6 listed above is based on 2/3 of an employee's regular rate of pay, and is capped at $200/day or $2,000 in the aggregate. 

  • Tax credit is based upon the type of leave payments, which emphasizes the importance of recordkeeping.

What are the limitations on existing sick leave policies?

Employers may not require employees to use or exhaust other forms of paid leave prior to using this paid sick leave. 

Are employees required to provide documentation supporting EPSLA leave?

The law is silent regarding documenting the reasons for leave, but employers must require contemporaneous written requests from employees.  The DOL may provide additional guidance. 

What other employee protections are included in EPSLA?

Employers may not retaliate or discriminate against employees who take leave under EPSLA. 

What penalties do employers face for noncompliance?

Failure to pay sick leave under EPSLA is treated in the same manner as a minimum wage violation under the FLSA

What are your recommendations for employers?

  • Begin by analyzing and modifying your existing sick leave policies to match with the new requirements.
  • If you are concerned about implementing a Reduction in Force, begin the planning function now to avoid potential implications of leave requirements.
  • Analyze the cost and credit outcomes on a worst-case scenario of sick leave of $15,510 or $12,000 for all employees. 

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

A New Formation Solution – is the SSLC Right for Your Business?

In early January 2021, Ohio adopted Senate Bill 276 which established a Revised Limited Liability Company Act (“ORLLCA”) as Ohio Revised Code Chapter 1706, which effectively replaces the current Ohio Limited Liability Company Act (Ohio Revised Code Chapter 1706). The ORLLCA will become effective on January 1, 2022. One of the principal changes within the ORLLCA is the ability to establish “series LLCs”. Ohio becomes the 15th state to adopt a “series LLC” (“SLLC”). The below FAQs will help you better understand the mechanics and nuances of a series LLC.

Surprise! A Cautionary Tale for Out-Of-Network Billing: The No Surprises Act and the Impact on Healthcare Providers

SURPRISE! Congress passed The No Surprises Act at the end of 2020. Providers, particularly those billing as out-of-network providers, should start thinking about strategies to comply with this new law, set to take effect on January 1, 2022. In its most basic sense, the new law prohibits providers from billing patients for more than the in-network cost-sharing amount in most situations where surprise bills happen. It specifically applies to non-government payers and the amounts will be set through a process described in the new law. In particular, the established in-network cost-sharing amount must be billed for the following services:

Ohio Enacts Substantial Changes to Employment Discrimination Laws

In January, Governor Mike DeWine signed into law the Employment Law Uniformity Act, amending the employment protections in the Ohio Civil Rights Act in several significant ways. Such changes to the state’s anti-discrimination and anti-harassment laws have been considered and debated for years and finally made their way into Ohio law. What has changed for employment claims under the amended Ohio Civil Rights Act?

OHIO ADOPTS THE SERIES LLC: Implementation of Ohio’s Revised Limited Liability Company Act is Coming

On January 7, 2021, Ohio adopted S.B. 276. The new legislation establishes the Ohio Revised Limited Liability Company Act (“ORLLCA”) which effectively replaces the current Ohio LLC Act. ORLLCA will be fully effective as of January 2022. While the new law contains numerous changes to the existing LLC landscape, below is an overview of some of the key differences under the ORLLCA.

Will Federal Legislation Open Cannabis Acquisition Floodgate?

Are potential buyers quietly lobbying at federal and state levels to kick open the door to launch a new round of strategic acquisitions? Will presently pending federal legislation, the SAFE and MORE Acts, providing safe harbor for banks and re- or de-scheduling marijuana, be sufficient to mobilize into action major non-cannabis companies that previously shunned the cannabis industry due to the unknown implications of owning businesses whose activities are illegal under federal law?