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The Future of the Families First Coronavirus Response Act

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.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.