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

Client Alert

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. 


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.