Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Record Keeping Requirements to Receive FFCRA IRS Tax Credit

Employee Requirements The employee must provide documentation to their employer containing the following information prior to taking Paid Sick Leave under the Emergency Paid Sick Leave Act (EPSLA) or Expanded Family and Medical Leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA):

  1. Employee’s name;
  2. Date(s) for which leave is requested;
  3. COVID-19 qualifying reason for leave; and
  4. A statement representing that the employee is unable to work (or telework) as a result of the COVID-19 qualifying reason.

These initial employee requirements are consistent with the Leave Request Form developed by BMD’s Labor & Employment team.

In addition, to be eligible for Paid Sick Leave under Sections 826.20(a)(1)(iii)-(iv) — the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis or is caring for someone experiencing symptoms of COVID-19 — the employee must additionally provide their employer with either:

  1. The name of the government entity that issued the Quarantine or Isolation Order to which the individual being cared for is subject; or
  2. The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.

To be eligible for Paid Sick Leave under Sections 826.20(a)(1)(v) or Expanded Family and Medical Leave — the employee is caring for a child whose school or childcare is closed — the employee must additionally provide their employer with:

  1. The name of the son or daughter being cared for;
  2. The name of the school, place of care, or childcare provider that has closed or become unavailable; and
  3. A statement representing that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave (this includes spouses and is a request where employers can nail down specifics). The DOL issued additional guidance that this payment should not be made if there is another suitable parent or individual residing inside the house.

Although these documents and information are provided by the employee, they should be retained by the employer. Beyond the above requirements, an employer may additionally request any material needed for the employer to support a request for tax credits under the FFCRA.

Employer Requirements

An employer is required to retain all documentation relevant to FFCRA leave for a period of no less than four (4) years (best practice is 7 years), regardless of whether leave was granted or denied. Additionally, if an employee provides any oral statement(s) to support their time off, the employer is required to document and maintain that information for four (4) years.

If an employer believes it qualifies for the small business exception, and accordingly denies an employee’s request pursuant to Section 826.40(b), the employer must document the determination and retain that information for four (4) years (best practice is 7 years).

In order to claim tax credits from the IRS, the Department of Labor advised that employers should retain the following:

  1. Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework and Paid Sick Leave and Expanded Family and Medical Leave;
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and
  5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

For questions, or more information, please contact any member of BMD’s Employment/Labor Law team.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.