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Everything you need to know about BMD and the industry.

How Do I Pay Employees for COVID-19 Telework?

Even as stay-at-home and isolation orders are slowly lifted, employers will continue to have employees teleworking due to the COVID-19 / coronavirus pandemic.

As a general rule:

  • Employees who are teleworking must record—and be compensated for—all hours actually worked, including overtime, in accordance with the requirements of the Fair Labor Standards Act (the “FLSA”); BUT 
  • The Department of Labor’s continuous workday guidance generally presumes that all time between performance of the first and last principal activities in a day is compensable work time. See 29 C.F.R. § 790.6(a) (the “Continuous Workday Rule”).

The DOL, however, has determined that the Continuous Workday Rule is inconsistent with the objectives of the Families First Coronavirus Response Act (the “FFCRA”) and the CARES Act with respect to employees required to telework due to COVID-19, whether the telework is required to comply with social distancing, to care for a child whose school is closed or any other reason precipitated by COVID-19. 

According to the DOL, applying the Continuous Workday Rule to employees who are teleworking for COVID-19 related reasons would disincentivize and undermine the flexibility in teleworking arrangements that are critical to the FFCRA framework Congress created within the broader national response to COVID-19.

As a result, from now until December 31, 2020, an employer with less than 500 full and part-time employees is not required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons. 

As explained by the DOL:

  • An employee may agree with an employer to perform telework for COVID-19 related reasons on an alternate schedule, such as: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. 
  • This allows an employee, for example, to help teach children whose school is closed or assist the employee's parents who are temporarily living with the family, reserving work times when there are fewer distractions. 
  • The employer must still compensate the employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between the employee's first principal activity at 7 a.m. and last at 9 p.m. must be compensated (with certain break times excepted), as may be the case for other teleworking employees or non-teleworking employees.

Please take note that the DOL guidance does not supersede more restrictive state law continuous workday rules that may exist in states where you do business. If such rules exist in your state(s), they must still be followed absent similar action by your state(s).

For additional information, please contact Adam D. Fuller, adfuller@bmdllc.com or 330.374.6737, or any member of the L+E Team at BMD.

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.