Client Alerts, News Articles & Blog Posts

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.

Ohio State Dental Board Implements Teledentistry Rules

Ohio law defines “teledentistry” as the delivery of dental services through the use of synchronous, real-time communication and the delivery of services of a dental hygienist or expanded function dental auxiliary pursuant to a dentist’s authorization.[1] The law requires a dentist who desires to provide dental services through teledentistry to apply for a teledentistry permit from the Ohio State Dental Board (“OSDB”).[2] Pursuant to the mandate under Ohio Revised Code 4715.436, the OSDB is implementing the following teledentistry permit rules and requirements (to be set forth under Ohio Administrative Code Chapter 4715-23). These regulations, which were subject of a public hearing on February 19, 2020, are effective on May 30, 2020.

HHS Addresses Drug Manufacturer Coupons on Out-of-Pocket Limits

On May 7, 2020, the US Department of Health and Human Services (“HHS”) announced their Notice of Benefit Parameters for 2021 in which HHS addressed the application of prescription drug manufacturer copay coupons towards a patient’s out-of-pocket limit. Under this guidance, HHS will permit, but not require, plans and insurers to count direct support offered to enrollees by drug manufacturers (i.e., coupons) for specific prescription drugs toward the annual limits on cost-sharing, regardless of whether a generic equivalent is available.

Important Updates, Deadlines, and Clarifications for the HHS Provider Relief Funds

On May 20, 2020, HHS made important updates and clarifications regarding the General Distribution payments to providers. Between April 10, 2020 and April 24, 2020, HHS distributed an initial $30 billion to providers based on the provider’s 2019 Medicare fee-for-service receipts. These funds were distributed automatically and providers did not need to submit an application in order to receive these funds. The funds were originally touted as a “no strings attached” stimulus payment reserved for healthcare providers. But HHS issued a 10-page Terms and Conditions and required that providers sign an attestation confirming receipt of the funds and agreeing to the Terms and Conditions.

Reopening & Social Media: Tips for Businesses

As the country starts to reopen, businesses are under great pressure to keep employees and customers safe. Even if a business follows every reopening requirement, there will inevitably be scrutiny from within and outside the organization. And, in this world of social media, perception tends to become reality. Below are a few practical tips to avoid attracting negative press while restarting your business.

Back to Work: Employer Documents

The return of the workforce brings a renewed set of documentation requirements for employers, particularly those employers with fewer than 500 employees and any companies who received PPP funds. Back in March, employers needed a COVID-19 Leave Form and a Remote Work Policy, but things have changed.