News and Insights
Visit regularly for up-to-date information on relevant news, firm announcements and additions to our AZ Health Law Blog.
UPDATE ON THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT: REVISIONS TO PAID LEAVE BENEFITS, INCLUDING HEALTHCARE PROVIDER EXEMPTION
The United States Department of Labor’s (DOL) Wage and Hour Division has issued revisions to the regulations implementing the paid leave provisions of the “Families First Coronavirus Response Act” (FFCRA). Responding to a recent federal court decision striking down key provisions of the DOL’s previously-issued regulations, the DOL has reaffirmed certain regulations, amended other regulations, and further explained the rationale behind its positions. The revised regulations went into effect on September 16, 2020.
FFCRA PAID LEAVE BASICS
Signed into law on March 18, 2020, the FFCRA authorized an emergency relief package providing support for individuals impacted by the COVID-19 public health emergency, including temporary paid sick and emergency family leave for eligible employees. The law applies to private sector employers with fewer than 500 employees as well as government entities, though certain exceptions may apply.
The FFCRA became effective on April 1, 2020 and is designated to expire on December 31, 2020.
Paid Sick Leave
The FFCRA provides paid sick leave to employees who are unable to work (or telework) due to the following COVID-19-related reasons:
1) The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2) The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in subparagraph (2).
5) The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.
6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.
Under the law, full-time employees are entitled to 80 hours of immediately-available paid sick leave. Part-time employees are entitled to paid sick leave in an amount that is equivalent to their normal work hours in a two-week period.
Employees must be paid their normal rate of pay or minimum wage – whichever is greater. With respect to self-care, paid sick leave is capped at $511/day and $5,110 in the aggregate. In cases in which an employee uses paid sick leave to care for others, the cap is $200/day and $2,000 in the aggregate.
Emergency Family Leave
The FFCRA (as an expansion of the Family Medical Leave Act or “FMLA”) provides up to 12 weeks of emergency family leave (or ten weeks of emergency family leave and two weeks of paid sick leave) to eligible employees who are unable to work (or telework) due to a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19.
Eligible employees are any part-time or full-time employee who has been on the job for at least 30 days.
An employer is permitted to designate the first ten days of emergency family leave as unpaid (although an employee can opt to use vacation time or other paid time off, including paid sick leave provided under the FFCRA, to cover the unpaid time).
Beyond the first ten days, emergency family leave is paid at two-thirds the employee’s normal rate of pay with a cap of $200/day and $10,000 in the aggregate.
Emergency family leave does not change the overall amount of FMLA leave available to employees during an applicable FMLA 12-month period.
THE REVISED REGULATIONS
Narrowing the definition of “healthcare provider”
Under the FFCRA, employers of “healthcare providers” may elect to exclude such employees from taking paid leave. While the initial regulations broadly defined “healthcare provider” to include nearly any person employed in a doctor’s office, hospital, or clinic, the revised regulations significantly narrow this definition to the following:
1) A “healthcare provider” as defined by the FMLA. The definition includes doctors (M.D.s and D.O.s), podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, certain Christian Science Practitioners, and other limited health care providers; or
2) Any other employee of a covered employer who is capable of providing health care services, “meaning he or she is employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This category of “healthcare providers” includes nurses, nurse assistants, medical technicians, and laboratory technicians.
The revised regulations provide examples of employees who will not be considered a “healthcare provider” for purposes of the FFCRA, including IT professionals, maintenance staff, human resources personnel, records managers, billers, and consultants.
Relaxing the requirement for providing notice and supporting documentation
The initial regulations required employees to provide employers with notice and documentation establishing the need for paid leave prior to taking the leave.
The revised regulations relax that standard. Rather than dictating that employees provide notice and documentation before taking leave, the revised regulations clarify that employees may provide documentation “as soon as practicable.”
In cases in which the need for leave is foreseeable, e.g., an employee knows that his or her child’s school is closed in advance, the DOL anticipates that the employee generally will provide notice before taking leave.
Reiterating paid leave is only available to employees “unable” to work/telework
An employee’s reason for taking paid leave must be the sole reason the employee is unable to work/telework (i.e., “but-for” the employee’s need to take leave, the employee would otherwise be working).
This means that an employee cannot use paid leave if his or her employer closes its worksite or otherwise does not have work available for the employee for reasons other than the employee’s need to take leave (i.e., paid leave is not available to employees who are furloughed, laid off, or on a reduced schedule due to lack of work or business).
With that said, the revised regulations underscore that employers may not arbitrarily withhold work or reduce an employee’s hours to prevent the employee from taking paid leave. An unavailability of work must be due to legitimate, non-discriminatory business reasons and not simply that an employer is attempting to thwart an employee’s ability to take paid leave.
Clarifying when an employee can take intermittent leave
For employees who are teleworking or working onsite, the revised regulations reiterate that employees may take intermittent emergency family leave or paid sick leave only with the consent of their employer.
With respect to employees who work onsite, the revised regulations also reaffirm that employees can only take intermittent paid sick leave because of a need to care for a minor child whose school/daycare is closed or because the child’s childcare provider is unavailable due to COVID-19 (i.e., employees who work onsite cannot take intermittent paid sick leave for any other qualifying reasons).
The revised regulations also elaborate on the meaning of “intermittent.” The DOL provides an example of an employee’s child who is participating in hybrid learning in which the child attends school only certain days during the week and is at home the remaining days. In this case, the DOL clarifies that an employee who takes emergency family leave, for example, Mondays and Wednesdays (when the employee’s child is not in school) and then works Tuesdays, Thursdays, and Fridays (when the employee’s child is in school) is not considered to be taking intermittent leave (and therefore does not require consent of his or her employer).
TAKEAWAYS FOR EMPLOYERS
Employers should make necessary adjustments to their FFCRA paid leave policies and procedures to ensure compliance with the revised regulations. Importantly, healthcare employers should take note of the DOL’s updated (and much narrower) definition of “healthcare provider” when determining which employees can be exempted from the FFCRA’s paid leave benefits.
The attorneys at Milligan Lawless will continue to update employers on various workplace issues arising from the COVID-19 public health emergency.
If you have any questions regarding how the FFCRA’s paid sick leave or emergency leave requirements affect your workplace, please contact John Conley or Kylie Mote at (602) 792-3500.
The Best Lawyers in America© is the longest-running, peer-review publication in the legal profession. Every year, Best Lawyers conducts comprehensive surveys of tens of thousands of lawyers who confidentially evaluate their professional peers. Based on the results of these surveys, the publication designates the year’s leading lawyers in all 50 states and the District of Columbia.
The Milligan Lawless attorneys recognized in the 2021 edition are:
2021 Best Lawyers
- Bryan S. Bailey: Health Care Law
- John A. Conley: Administrative/Regulatory Law
- Robert J. Itri: Commercial Litigation; Copyright Law; Litigation – Intellectual Property; and Trademark Law
- Steven T. Lawrence: Corporate Law
- Thomas A. Maraz: Construction Law
- Robert J. Milligan: Health Care Law
- James R. Taylor: Health Care Law
2021 Best Lawyers: Ones To Watch
- Lauren A. Crawford: Commercial Litigation
- Kylie E. Mote: Health Care Law
- Miranda Preston: Health Care Law
Effective January 1, 2019, Arizona-based small employers will be required to provide continuation of employer-sponsored health plan benefits to qualifying former employees and their covered dependents. Currently, employers who employ at least 20 employees (as calculated by determining the number of employees employed on more than fifty percent of the employer’s typical business days in the previous calendar year) are required to offer continuing group coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA or “federal COBRA”). Arizona’s new law, referred to as a “mini-COBRA,” will apply to employers with at least one but not more than 20 employees during the preceding calendar year.
Under the law, former employees who elect to continue coverage will receive benefits at the group cost, including the employer’s contribution and administrative fee (capped at five percent of the premium). To be eligible for continued coverage under the new law, employees and their covered dependents must 1) be enrolled in a group medical insurance plan for a minimum of three months, 2) be ineligible for Medicare coverage, and 3) experience a “Qualifying Event” thereafter losing coverage. The law defines a “Qualifying Event” as follows: voluntary or involuntary termination of employment for a reason other than gross misconduct or reduction of hours required to quality for coverage;divorce or separation from the employee; death of the employee; the employee becomes eligible for Medicare coverage; a dependent child ceases to be a dependent child under the insurance plan; a retired former employee and his or her dependents lose coverage within one year before or after the employer files for bankruptcy.
Within 30 days of the occurrence of a Qualifying Event, mandated employers must provide written notification to an employee of his or her right to continue coverage(though the law considers a written notice timely if it is postmarked within 44 days of the Qualifying Event and mailed to the employee’s last known address).In the event that a covered dependent resides at a different address than the employee, the employer must deliver a separate written notice to the dependent. The written notice must inform the employee and his or her dependents of their right to continue coverage, the amount of the full cost of coverage (including the employer’s administrative fee), the process and deadlines for electing continuation of coverage, the dates and times for making payments, and the consequence for failure to pay in a timely manner (i.e., loss of coverage). For those employees and/or dependents receiving mini-COBRA coverage, employers are also required to provide at least 30 days advance notice of any changes to coverage (e.g., rates, plan, benefits,etc.).
To continue coverage, employees must provide written notification to the employer within 60 days of the date of the employer’s notice. After electing coverage, employees have 45 days to submit the initial premium to the employer. Mini-COBRA coverage terminates upon the earliest of the following events: 18 months following the commencement of coverage; the employee’s failure to timely pay premiums; the date on which the employee or a covered dependent becomes eligible for coverage under Medicare, Medicaid, or any other health benefit plan (with respect only to that person); the date on which an employer terminates coverage under the health benefit plan for all employees (the employee and covered dependents are eligible to participate in a replacement plan); or the date a dependent child would otherwise lose coverage under the terms of the health benefit plan due to age (with respect only to that dependent child). In the event that a covered dependent is deemed disabled at the time of the Qualifying Event, the dependent may be eligible for extended coverage.
Mini-COBRA Broken Down
Continued Coverage: Employees and their covered dependents receive continued employer-sponsored health plan benefits at the group cost.
Mandated Employers: Employers with at least one but no more than 20 employees during the preceding calendar year.
Eligible Employees: Employees must be covered under a group medical insurance plan for a minimum of three months; ineligible for Medicare coverage; experience a Qualifying Event.
Notification Requirements: Employer’s notice required within 30 days of the Qualifying Event. Separate notice required if a covered dependent resides at a different address.
Employer’s Administrative Fee: Capped at five percent.
Election of Coverage: Employees have 60 days from the date of employer’s notice to submit written notice of their desire to continue coverage. Initial premium is due within 45 days of electing coverage.
How Long Does Coverage Last: Generally 18 months, though coverage time may vary under certain circumstances.
Employers who would like more information about Arizona’s mini-COBRA law are encouraged to contact the attorneys at Milligan Lawless for assistance.
Steve Lawrence Provides Insights to The Ambulatory M&A Advisor
In an article entitled “Failure in an M&A Transaction for the Physician Owner,” Milligan Lawless partner Steve Lawrence provides tips on how to avoid pitfalls during the M&A Transaction Process.
Peer reviews have been tallied and once again, Milligan Lawless has received the following distinctions:
2017 “Best Lawyers of America”
Bryan S. Bailey – Health Care Law
James R. Taylor – Health Care Law
Robert J. Itri – Commercial Litigation; Copyright Law; Litigation – Intellectual Property; Trademark Law
Robert J. Milligan – Health Care Law
Steven T. Lawrence – Corporate Law
2017 “Best Law Firms”
National Tier 3
Health Care Law
Metropolitan Tier 1- Phoenix
Health Care Law
Metropolitan Tier 2-Phoenix
Employment Law – Individuals
Employment Law – Management
Labor Law – Management
Litigation – Intellectual Property
Litigation – Labor & Employment
Metropolitan Tier 3-Phoenix