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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. 

The Masks Are Back: New OSHA Regulations for Healthcare Employers

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk. All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.

Employer Liability for COVID-19 Vaccine Side Effects

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.