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

Client Alert

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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Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.