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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.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.