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Paid Leave for Coronavirus: Department of Labor Issues Its Temporary FFCRA Rule

The Department of Labor issued its Temporary Rules under the Families First Coronavirus Response Act (FFCRA) pertaining to the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The rule became operational on April 1, 2020 and was officially published on April 6, 2020. 

Reasons for Leave - BUT FOR CAUSE. The coronavirus-related reason must be the "but for" cause of the need for leave. If employees would be unable to work even in the absence of the qualifying reason, they are not entitled to paid sick or family leave under FFCRA. This confirms our guidance that, if the workplace is closed, the employee is not entitled to paid leave. An employee is not entitled to paid sick or family leave if the employer does not have work for them to perform. The new rule also provided additional information related to each qualifying reason for leave.    

Reason 1 – Leave Due to Quarantine or Isolation Order – Quarantine or isolation orders do include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. 

Reason 2 Leave Based on Medical Advice to Self-Quarantine – The advice to self-quarantine must be based on the health care provider’s belief that the employee has or may have coronavirus or is particularly vulnerable to it. 

Reason 3 Leave Due to Symptoms and Seeking Diagnosis - Must be limited to the time the employee is unable to work because she or he is taking affirmative steps to obtain a medical diagnosis, for example, time spent making, waiting for, or attending an appointment for a test for coronavirus. 

Reason 4 Leave Based on Caring for Another Affected by Coronavirus - The individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if she or he self-quarantined or was quarantined. 

Reason 5 Leave Based on Childcare Needs - An employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual—such as a co-parent, co-guardian, or the usual childcare provider—is available to provide the care the employee’s child needs. 

Reason 6 – Leave Due to a Substantially Similar Condition - The Department of Health and Human Services has not yet specified any conditions "substantially similar" to coronavirus, so there is no recognized basis for leave under this category at this time.  

Documentation of Leave - Employers should obtain a signed statement containing the following information: (1) the employee’s name, (2) the dates for which leave is requested, (3) the coronavirus- qualifying reason for leave, and (4) a statement representing that the employee is unable to work or telework because of the coronavirus-qualifying reason. Employers should also document verbal statements from employees related to the need for leave. The IRS has also issued separate requirements related to employers obtaining the tax credits for paid sick and family leave payments.  For more detailed information see Bryan Meek's article here: https://www.bmdllc.com/resources/blog/record-keeping-requirements-to-receive-ffcra-irs-tax-credit/  

EFMLEA 30 Days of Employment Requirement – EFMLEA requires that employees be employed for 30 calendar days to be eligible for the childcare leave available under the expansion of FMLA. The rule clarifies that this includes employees who were laid off or otherwise terminated on or after March 1, 2020, had worked for the employer for at least thirty of the prior 60 calendar days, and were  subsequently rehired or otherwise reemployed by the same employer. 

Definition of Son or Daughter - Son or daughter, for purposes of the childcare leave provisions, should be understood in the same manner as the FMLA.  It includes children under age 18 and children of any age incapable of selfcare because of mental or physical disability. 

Definition of Childcare Provider - Although the definition in the act refers to providers who are compensated and licensed, the eligible child care provider need not be compensated or licensed if she or he is a family member or friend, such as a neighbor, who regularly cares for the employee's child. 

Viability Exemption for Small Employers - The viability exemption relates only to childcare leave under FFCRA, and not the five other reasons for paid sick or family leave available under FFCRA. The exemption is available to employers with fewer than 50 employees, in the following circumstances: 

  • such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
  • the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
  • the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity. 

Health Care Provider and Emergency Responder Exemption - This exemption is at the election of the employer (an employer could choose to provide paid leave consistent with FFCRA and still receive tax credits, even if eligible for exemption), and it should be exercised "judiciously."  

The definition of healthcare provider is broader than the usual FMLA definition. It includes any individual who is capable of providing health care services necessary to combat coronavirus - which means workers who are needed to keep hospitals and similar health care facilities well supplied and operational and workers who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat coronavirus.  

The definition of emergency responder includes employees, anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of patients, or others needed for the response to coronavirus. The new rule also allows for the highest official of a state or territory to identify other categories of emergency responders, as necessary. 

Intermittent Leave – The right to intermittent leave for coronavirus reasons is limited, so as to be consistent with the law’s objective of slowing the spread of coronavirus. As a threshold matter, intermittent leave is only available to employees if the employer and employee can come to an agreement about it. There must be a clear and mutual understanding of the parameters of any intermittent leave. Further, if the employee is still reporting to the worksite (as opposed to teleworking), they may only take intermittently leave for the purpose of childcare. They are prohibited from taking leave intermittently for reasons 1, 2, 3, 4, and 6 when reporting to the worksite due to the risk of spreading coronavirus to other employees at the worksite.   

EFMLA Cause of Action for Interference/Discrimination - An employee’s private right of action under the FMLA to file a lawsuit directly against an employer for violation of EFMLEA does not extend to employers who were not previously covered by the FMLA (in other words, employers who do not meet the threshold of 50 or more employees within a 75 mile radius).  

FLSA Telework Guidance - Employees must be compensated for all hours actually worked, including overtime, when teleworking for reasons related to coronavirus. An employee must record and report hours worked, and an employer is not required to pay for unreported hours while teleworking unless it knew or should have known about such telework. In addition, the DOL explained that its continuous workday guidance is inconsistent with FFCRA and the CARES Act with respect to teleworking employees.  In other words, employers providing telework flexibility related to coronavirus need not count as hours worked all time between the first and last principal activity performed by the employee in a day.  

For more information, please contact Russell T. Rendall at 216.658.2205 or rtrendall@bmdll.com.

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Lockdowns, Landlords, & Litigation: Abercrombie & Fitch Flips The Script on Simon Property Group Inc.

Novel litigation between commercial property owners and tenants arises from COVID-19 lockdowns. Typically, owners sue for nonpayment of rent. But in Franklin County, Ohio, a large retail tenant turned the tables and sued the owner to recoup payments.

UPDATE: Ohio Businesses Remain Required to Post Exceptions to State-Wide Mask Mandate at All Entrances

On August 1, 2020, Lance D. Himes, Interim Director of the Ohio Department of Health, issued an amended order continuing the requirement that Ohio businesses post at all entrances any permitted exceptions they provide to customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings.

2020 Marcum National Construction Survey Marks a New, Post-Pandemic Construction Environment

The results of the 2020 Marcum National Construction Survey are in, and the construction industry’s outlook for the remainder of 2020 and beginning of 2021 remains cautiously optimistic despite the COVID-19 global pandemic. Ability to find skilled labor, healthcare expenses, and material costs remain the top concerns for the industry, while “lack of future work” joins the list.

Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.

We are Working in a Virtual, Video-Conferencing World – But What About Wiretapping?

Businesses and other organizations often have a need or desire to record telephone conversations related to their business interests and customer dealings; however, this practice is not always permissible as federal and state laws vary on this issue. Knowing and understanding your jurisdiction’s rules and regulations on this practice is essential to remaining in compliance with the law.