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Everything you need to know about BMD and the industry.

With Summer Vacation on the Way, Are Employees Still Entitled to Childcare Leave under EFMLEA?

Distance learning/homeschooling is finally starting to wrap-up for millions of students across America, a perhaps welcomed end for many, and summer vacation will soon begin. Your employees may have questions as to whether they qualify for child care leave under the expanded FMLA (“EFMLEA”), which many employees used over the last few months to receive partial compensation while they were away from work to care for their children. Now, employers with fewer than 500 employees must take note of additional guidance recently published concerning qualification for childcare leave.

Recently, the Department of Labor (“DOL”) provided guidance on this question:

"Can employees take paid leave to care for a child under the EFMLEA or the paid sick leave under the child care provisions of Emergency Paid Sick Leave Act (“EPSLA”) when school is closed for summer vacation?"

The DOL stated no. Paid leave under EFMLEA and EPSLA are not available to provide child care “if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, the employee may be able to take leave if his or her child’s care provider during the summer - a camp or other programs in which the employee’s child is enrolled - is closed or unavailable for a COVID-19 related reason.” Meaning, an employee who requests leave because schools or childcare providers are closing for the summer, is not eligible for the emergency childcare leave. 

If you have any employees who are using the paid childcare leave because they have been unable to work due to homeschooling or home childcare requirements, the employer has been receiving tax credits for those payments. However, once school is no longer in session, the paid childcare leave is no longer applicable, and the employer will not be entitled to credits for any payments. For this reason, the employer needs to stop the childcare payments.

Please also keep this in mind for any childcare leave requests over the summer. A school or daycare that is closed for summer vacation does not qualify for COVID-19 emergency leave. However, employees may still be eligible for childcare leave over the summer if a child’s normal, summer childcare provider is closed for a COVID-19 related reason, such as summer camp closures. 

We recommend that all employers review this issue with any employees who are currently out on emergency childcare leave. As always, please do not hesitate to contact us with any additional questions or concerns.

Bryan Meek is a member of Brennan, Manna & Diamond’s Labor & Employment team and is available to assist you with responding to requests for information and/or appealing unfavorable unemployment decisions. Bryan can be reached at 330.253.5586, or bmeek@bmdllc.com.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.