Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

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.

To recap, on August 3, 2020, a judge out of the Southern District of New York (“SDNY”) issued a decision in State of New York v. U.S. Department of Labor, challenging certain provisions of the DOL’s regulations, including the definition of “health care provider,” certain considerations regarding FFCRA leave eligibility, and employee notice requirements. A more comprehensive overview of the SDNY’s holding can be found here.

Although the SDNY’s decision was not the first legal attack on the FFCRA nor the DOL’s related regulatory provisions, the scrutiny arising from the Federal District Court was enough to prompt the DOL to reevaluate the challenged provisions.

The new DOL Final Rule, which is scheduled to take effect on Wednesday, September 16th, does the following:

  1. Addresses “Healthcare Provider” Definition and Exemption | In its new Final Rule, the DOL redefines who is encompassed within the meaning of “healthcare provider” under the FFCRA to include: (1) traditional healthcare providers under the FMLA, and (2) “other employees who are employed to provide diagnostic services, preventative services, treatment services, and other services that are integrated with and necessary to the provision of patient care.”

    In effect, the DOL Final Rule narrows the original FFCRA definition of “healthcare provider” as well as provides explicit examples of included professions and healthcare entities.

    As a practical matter, this modification will require all healthcare providers who previously invoked the “healthcare provider exemption” to revisit their parameters of use, as some employees may no longer be included within the new definition and exemption. 

  2. Doubles Down on the “Work Availability” Requirement | The DOL rejected the SDNY’s holding that an employer’s ability to provide an employee with work to complete may not be considered relevant in assessing eligibility for FFCRA leave. In other words, the DOL’s original position on this issue remains unchanged — an employee is only entitled to FFCRA leave if the employer has work available for the employee, but the employee cannot perform the work due to one of the six qualifying reasons under the FFCRA.

    As it relates to this requirement, employers should remember that they may not make work unavailable in an effort to deny an FFCRA leave request — this action would constitute impermissible retaliation.

  3. Doubles Down on Intermittent Leave Approval | In response to the SDNY’s challenge asserting that an employee may take intermittent leave without first receiving employer approval, the DOL affirmed its original position which provides that employer approval is required in order to take certain FFCRA leave intermittently. In support of this holding, the DOL reasoned that the FFCRA pre-approval requirement is consistent with longstanding FMLA principles on leave issues as it protects against disruptions in an employer’s business operations.

  4. Modifies Notice and Documentation Requirements | In its holding, the SDNY challenged certain FFCRA leave notice requirements as impracticable for requiring employees to submit notice prior to taking any leave. In its new Final Rule, the DOL agreed. Accordingly, employees are now required to submit notice of FFCRA leave “as soon as practicable.” For employees taking leave as a result of a school or childcare facility closure, this means providing notice in advance. However, for circumstances involving illness, notice and supporting documentation may be provided after leave begins. 

The new DOL Final Rule provides much needed clarification to questions lingering from the April FFCRA enactment and subsequent DOL guidance. With that said, COVID-19 legislation — including the forthcoming updates — are complex in nature and require careful adherence in order to mitigate future liability.

As questions, concerns, and legal guidance continue to evolve with the changing times, it is essential for employers to stay informed. If you need assistance with any issues arising from the COVID-19 pandemic, please contact Bryan Meek at 330.253.5586 or bmeek@bmdllc.com, or feel free to contact any member of BMD's Employment & Labor practice group. 

A New Formation Solution – is the SSLC Right for Your Business?

In early January 2021, Ohio adopted Senate Bill 276 which established a Revised Limited Liability Company Act (“ORLLCA”) as Ohio Revised Code Chapter 1706, which effectively replaces the current Ohio Limited Liability Company Act (Ohio Revised Code Chapter 1706). The ORLLCA will become effective on January 1, 2022. One of the principal changes within the ORLLCA is the ability to establish “series LLCs”. Ohio becomes the 15th state to adopt a “series LLC” (“SLLC”). The below FAQs will help you better understand the mechanics and nuances of a series LLC.

Surprise! A Cautionary Tale for Out-Of-Network Billing: The No Surprises Act and the Impact on Healthcare Providers

SURPRISE! Congress passed The No Surprises Act at the end of 2020. Providers, particularly those billing as out-of-network providers, should start thinking about strategies to comply with this new law, set to take effect on January 1, 2022. In its most basic sense, the new law prohibits providers from billing patients for more than the in-network cost-sharing amount in most situations where surprise bills happen. It specifically applies to non-government payers and the amounts will be set through a process described in the new law. In particular, the established in-network cost-sharing amount must be billed for the following services:

Ohio Enacts Substantial Changes to Employment Discrimination Laws

In January, Governor Mike DeWine signed into law the Employment Law Uniformity Act, amending the employment protections in the Ohio Civil Rights Act in several significant ways. Such changes to the state’s anti-discrimination and anti-harassment laws have been considered and debated for years and finally made their way into Ohio law. What has changed for employment claims under the amended Ohio Civil Rights Act?

OHIO ADOPTS THE SERIES LLC: Implementation of Ohio’s Revised Limited Liability Company Act is Coming

On January 7, 2021, Ohio adopted S.B. 276. The new legislation establishes the Ohio Revised Limited Liability Company Act (“ORLLCA”) which effectively replaces the current Ohio LLC Act. ORLLCA will be fully effective as of January 2022. While the new law contains numerous changes to the existing LLC landscape, below is an overview of some of the key differences under the ORLLCA.

Will Federal Legislation Open Cannabis Acquisition Floodgate?

Are potential buyers quietly lobbying at federal and state levels to kick open the door to launch a new round of strategic acquisitions? Will presently pending federal legislation, the SAFE and MORE Acts, providing safe harbor for banks and re- or de-scheduling marijuana, be sufficient to mobilize into action major non-cannabis companies that previously shunned the cannabis industry due to the unknown implications of owning businesses whose activities are illegal under federal law?