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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.

COVID, Privacy and More! New Challenges for Physicians in 2021

While hopefully we are coming out of the pandemic, the legal repercussions related to legislative initiatives and other actions during that time continue to apply to businesses in general and healthcare practices. It is a helpful reminder that practices make certain that they maintain accurate records in order to satisfy the reporting requirements under the various COVID-related bills and protect yourself from future employment claims.

Banking and Cannabis: Bank Lending, The Next Frontier

A fortuitous combination of developments and circumstances present the banking and cannabis industries a large opportunity to enhance each of their respective bottom lines: conventional bank lending, payment processing, treasury management and other services, and bank administered SBA and revenue bond financing to cannabis businesses.

EKRA Updates: COVID-19 Testing, Employment Agreements, and More

Ever since the Eliminating Kickbacks in Recovery Act (“EKRA”) was passed by Congress in 2018, we have been waiting to see how the law is interpreted and ultimately enforced. As a reminder, EKRA seeks to eliminate kickbacks in return for patient referrals to facilities that treat those overcoming addiction, such as recovery homes, clinical treatment centers, and laboratories. (NOTE: EKRA applies to all laboratories, not just those related to addiction treatment.) It is essentially an expansion of the Anti-Kickback Statute, which only applies to those services that are reimbursable through federal healthcare programs such as Medicare and Medicaid, to now also cover services reimbursable through private insurers.

New Interpretation of the Fair Debt Collection Practices Act Rocks the Industry

It’s not lost on us that our interpretation of § 1692c(b) runs the risk of upsetting the status quo in the debt-collection industry. This quote from the Eleventh Circuit Court of Appeal in its April 21, 2021 opinion from the case of Hunstein v. Preferred Collection and Management Services, Inc. is possibly the biggest understatement in the history of the Fair Debt Collection Practices Act. At a minimum, the Eleventh Circuit’s opinion has sent shockwaves and fear throughout multiple sectors of the financial services industry.

Construction Industry Trends and Predictions Through 2021 and Beyond: Insurance and Emerging Threats

A 2021 survey identified three key issues impacting the construction industry in 2021: (1) the financial health of contractors; (2) the continuing risk of the pandemic; and (3) technology driving productivity, but also increasing the risk of cybersecurity threats. With this backdrop, insurance premiums in the construction industry are generally on the rise in 2021.