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Everything you need to know about BMD and the industry.

Relief for Employers from Unemployment Filings

From the last 7 weeks, the total number of unemployment filings in the U.S. now totals 33.5 million, an unprecedented number comparable to the number of filings during the Great Depression. Although some state and federal funds are being used to supplement the unemployment funds, providing additional compensation to the unemployed, employers will be responsible for a very large portion of the total funds being doled out to employees. Specifically, employers will be responsible for repaying the state for up to 26 weeks of payments made to their unemployed employees, even those that are temporarily laid off and with plans to return. This financial responsibility will add up quickly for employers. 

There is good news for those facing large unemployment bills that will come due at the end of the year. Although state or federal legislators may eventually provide additional monetary relief to employers for unemployment liability, immediate relief is currently available to employers through the following options. 

1. Have employees return to work as soon as possible. 

If a company is permitted to reopen under state and local health orders, employees’ unemployment payments will stop once they return to work. This means that additional weeks the employees would spend on unemployment, if not reemployed, will not be charged to the employers’ accounts. 

2. Report to the state unemployment commissions if employees refuse to return to work.

If a company reopens and certain employees refuse to return to work without a valid, legal reason, employers should notify their state unemployment commission. For example, in Ohio, the Department of Job and Family Services established an online form that employers complete when employees refuse to return to work (located here). Employees are not eligible for continuing unemployment benefits if they are reoffered work at the same or similar pay and hours. Therefore, the completion of this form should have the effect of cutting off the employees’ unemployment benefits, thus preventing further liability being applied to the employers’ accounts. We also recommend, in addition to the online submission, employers notify their state unemployment commission, via a written letter, that an employee has refused to return to work under the same or similar pay and hours. 

Notably, if an employee is offered a return to work under reduced hours or pay, the employer should still notify its unemployment commission as the liability may be partially reduced in proportion to the hours/pay being offered. 

3. Appeal unemployment charges for former employees that previously quit or were fired from their job prior to the COVID-19 pandemic.

Finally, as discussed in a previous Client Alert located here, employers should be challenging all unemployment filings from former employees who quit or were terminated for just cause prior to the beginning of the COVID-19 pandemic. Under most state unemployment laws, employers can be liable for a former employee’s unemployment benefits up to a year from departure of employment. However, this liability may be removed or reduced if the employee quit or was terminated for just cause. Employers will need to go through the appeal process to challenge these unemployment filings as the state unemployment commission is likely unaware that the employee previously quit or was terminated. For this reason, employers must complete and timely respond to all requests for information, including the details surrounding the departure. Employers should include all relevant information, including resignation letters/emails or handbook provisions that have been violated leading to a termination. 

Bryan Meek is a member of Brennan, Manna & Diamond’s Labor & Employment team and is available to assist you with responding to requests for information and/or appealing unfavorable unemployment decisions. Bryan can be reached at 330.253.5586, or bmeek@bmdllc.com.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

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.