Client Alerts, News Articles & Blog Posts

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.

HHS Announces an Additional $20 Billion In Provider Relief Grants

The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.