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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.

The Masks Are Back: New OSHA Regulations for Healthcare Employers

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk. All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.

Employer Liability for COVID-19 Vaccine Side Effects

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.