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The Future of the Families First Coronavirus Response Act

Client Alert

This article was originally published in The Examiner Magazine.

Over the last year, we all have had to adjust to the new normal ushered in by the coronavirus pandemic. Schools and daycares closed, businesses transitioned from in-office work to work from home, bars and restaurants have closed their doors...all to slow the spread and try to prevent this pandemic from spiraling out of control. The start of the pandemic was utter pandemonium. Working parents trying to balance both caring for their now at-home children and their livelihood. Businesses trying to decide how to implement leave policies with limited information. Employees determining if they could financially afford to take time off. We were all flying by the seat of our pants trying to adjust to our new normal.

Then in mid-March, to try and tame the chaos, the Federal Government passed the Families First Coronavirus Response Act (“FFCRA”).

The FFCRA provided several responses to address the ongoing crisis, including providing for free coronavirus testing, giving a boost to funding for state unemployment compensation, and leave for employees affected by coronavirus through the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), and the Emergency Paid Sick Leave Act (“EPSLA”).

With schools and daycares closed, parents had to make hard choices when it came to balancing work and caring for their children. The FFCRA sought to unburden these parents through the EMFLEA. This temporary amendment to the Family Medical Leave Act (“FMLA”) required that employers provide leave to employees who could not work because they were caring for a child affected by COVID-19 school and daycare closures. Eligible employees were initially entitled up to 10 days of unpaid leave, with the option to extend leave beyond 10 days, up to the maximum 12-weeks provided by the FMLA. The EFMLEA applied to employers with fewer than 500 employees and government employers of any size; however, it did contain some exceptions for businesses with fewer than 50 employees.

While the EFMLEA provided an avenue of relief for parents to care for their now at-home children, it did little to encourage those who were sick or exposed to risk their livelihood by taking time off work. The FFCRA sought to give these employees a way to take the time off they needed without risking their financial wellbeing through the EPSLA. The EPSLA temporarily mandated that certain employers provide paid sick leave benefits, up to 80 hours, for several types of COVID-19 related absences. There were six qualifying reasons for leave under the EPSLA: 1) the employee is subject to a Federal, State, or local quarantine isolation order related to COVID-19; 2) the employee has been advised by a health care provider to self-quarantine related to COVID-19; 3) the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis; 4) the employee is caring for an individual subject to an order to quarantine or self-quarantine; 5) the employee is caring for a child whose school or place of care is closed for reasons related to COVID-19; and 6) the employee is experiencing any other substantially similar condition. The EPSLA could be utilized concurrently with the initial 2-week unpaid leave period under the EFMLEA, if an employee was eligible for both forms of leave. The EPSLA applied to all full and part-time employees of employers with fewer than 500 employees and government employers of any size.

In short, the FFCRA, through the EFMLEA and EPSLA, sought to alleviate the financial hardships of having to take time off from work in response to COVID-19. The FFCRA allowed employees to receive up to 80 hours of paid sick leave through the EPSLA and another 12 weeks of family leave, with 10 weeks being paid, through the EFMLEA. Employers then received a dollar-for-dollar reimbursement through tax credits and refunds.

The FFCRA expired on December 31, 2020, ending the mandatory compliance for businesses of both the EMFLEA and EPSLA. However, the FFCRA’s role is not finished yet. Late on December 27th, President Trump signed into law the government’s $900 billon COVID-19 relief package, the Stimulus Bill. This Stimulus Bill, among other economic benefits, implements changes to the FFCRA. While mandatory compliance with the FFCRA is done, the Stimulus Bill allows employers to voluntarily extend the leave polices under both the EMFLEA and EPSLA and take advantage of the payroll tax credits until March 31, 2021. This means that employers who comply with the FFCRA and provide leave benefits under either the EMFLEA or EPSLA for employees will receive tax credits, up to the maximums provided by the FCCA, for payment made prior to April 1, 2021.

Since the ending of the mandatory enforcement of the FFCRA benefits, employers may now choose which parts of the FFCRA they utilize for leave benefits. For example, employers can choose to allow employees to take sick leave under the EPSLA but do away with the benefits provided under the EFMLEA, or vice versa. Allowing employers to choose what works best for their business and their employees.

With the changes the Stimulus Bill provides, employers will need to update their leave policies. Once employers determine which leave benefits they will continue to offer, they should revise all COVID-19 employment leave policies to reflect these changes. Even if employers decide to leave all benefits in place, they should still update their policies to reflect that these benefits will automatically terminate on March 31, 2021.

Something important for employers and employees alike to understand is that the Stimulus Bill does not provide additional time for employees who have previously exhausted all leave time under the EFMLEA and EPSLA. If they have already taken all their leave, they are no longer eligible for benefits under the FFCRA. If these employees need to take any additional time off for COVID-19 related reasons they will have to utilize paid-time-off, sick time, or take an unpaid leave of absence. The only caveat being for employers that have FMLA policies. If an employer who has FMLA policies uses a calendar year benefit renewal, rather than a rolling year benefit renewal, employees will have received additional time under the FMLA as of January 1, 2021. This means that if these employers continue to allow leave under the EFMLEA through March 31, 2021, their employees will receive an additional 10 weeks as of January 1, 2021.

While the Federal Government is no longer enforcing mandatory leave policies, several states are implementing their own versions of COVID-19 employee leave policies. Arizona, California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Rhode Island, Vermont, Washington, and Washington D.C. all have their own statewide policies. Certain counties in New Mexico and Texas have also issued COVID-19 leave policies, along with major cities in numerous other states.

It has been a crazy year as we all get adjusted to this new normal, but there is a light at the end of the tunnel. By only extending the benefits of the FFCRA until March 31, 2021, Congress is signaling to the American people that it believes many of the employed public will be vaccinated by early this year. Hopefully, before long we can put away this new normal and just get back to normal, whatever that may be.

For more information on the FFCRA, please contact BMD Labor and Employment Partner Bryan Meek at bmeek@bmdllc.com or 330.253.5586.


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.