Subject: On March 18, 2020, the President signed into law the Families First Coronavirus Response Act (“FFCRA”), after having been passed in the U.S. House March 13, 2020 and being revised March 16, 2020.   

Synopsis: The FFCRA contains sweeping emergency paid sick leave and paid FMLA requirements for employers with less than 500 employees, as well as government employers, in response to the current  COVID-19 crisis.

The employer-related provision of the FFCRA are effective 15 days after enactment, which is Thursday, April 2, 2020.  The requirements will expire on December 31, 2020. 

  • The FFCRA contains six primary relief measures of importance to employers:

    • Up to two weeks of paid leave to all employees for certain COVID-19 related matters;

    • Family and Medical Leave Act expansion to provide partially paid leave to care for the employee’s child, if the child’s school or other place of care has been closed, or the child care provider is unavailable, due to a COVID-19 related emergency as declared by the Federal, State or local government;

    • Similar leave for employees of employers who are parties to a multi-employer collective bargaining agreement in cases where employers contribute to a multi-employer benefit plan;

    • Tax credits equal to 100% of the FFCRA-mandated paid leave wages paid by an employer each calendar quarter subject to certain caps (the tax credits are not available for government employers), the Medicare taxes owed on those wages, and the expenses associated with maintaining group health plan coverage associated with those wages;

    • Greater access to unemployment insurance for employees who are off work for certain reasons related to COVID-19; and

    • Coverage of COVID-19 testing at no cost under health plans.

Each of these measures has their unique specifics. The below is an amalgamation of multiple opinions we have been able to review and you should note that each individual situation may be different so we suggest you consult with counsel for any specific scenario situations which may arise with regard to your business needs and issues.

Emergency Paid Sick Leave Act

  • Employers with fewer than 500 employees and government employers to provide all employees up to two weeks of paid sick leave for certain qualifying COVID-19 related absences for immediate use until December 31, 2020.

  • The U.S. Secretary of Labor has the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition of the requirements would jeopardize the viability of the business as a going concern—HOWEVER it is unclear whether such exemption will occur. 

  • An employee qualifies for emergency paid sick time, assuming the employee cannot work or telework, for any of the following reasons: 

  • Employee is subject to federal, state, or local quarantine order related to COVID-19; 

  • Employee advised by a health care provider to self-quarantine due to COVID-19 concerns; 

  • Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; 

  • Employee is caring for an individual who is subject to government quarantine order or has been advised by a health care provider to self-quarantine as described above; 

  • Employee is caring for a child because the child’s school or place of care has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions;

  • The employee is experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services, in consultation with the U.S. Secretaries of Treasury and Labor. 

    • Full-time employees receive up to 80 hours.

    • Part-time employees:

      • Part-time employees receive the average number of hours of work they work over a two-week period.

      • If the part-time employee’s schedule varies, the employee receives the average number of hours scheduled per day over the prior six-month period, including hours for which the employee took any type of leave.

      • If neither is calculable, the part-time employee receives the amount the employee expected to work when hired.

  • For absences related to the employee’s own care (the first three reasons listed above), the employee receives the greater of the employee’s regular rate of pay or the applicable minimum wage, but pay is capped at $511 per day or $5,110 in total.

  • For absences to care for others (the last three reasons listed above), the employee receives two-thirds of the employee’s regular rate or the applicable minimum wage, but pay is capped $200 per day or $2,000 in total.

  • These limits match the caps on the tax credits discussed below. 

  • The U.S. Secretary of Labor is to issue guidelines to assist employers in calculating rates of pay. 

  • Interaction with Existing Policies:

    • Employees have the right to choose to use paid emergency sick leave before existing paid time off benefits (PTO, vacation, personal days, sick days, etc.).

    • Employer may not require any employee to use other paid time off benefits (PTO, vacation, personal days, sick days, etc.) prior to the use of paid sick time under the new law. 

    • The law does not diminish an employee’s right to pay under any other Federal, State or local law, collective bargaining agreement, or existing employer policy. (Consider this paid sick time is in addition to time already available under an employer’s existing policies)

  • Notice: An employer may require reasonable notice from an employee to continue to receive paid sick time. (No clarifying guidance has been published as to this point.)

  • Return to Work: Even if an employee has not used all the paid sick time, the employee must return to work at the employee’s next scheduled work shift after the need for leave ends. 

  • Replacements: An employer may not require an employee to find a replacement when using paid sick time under the law.

  • No Discrimination or Retaliation: No discrimination or retaliation is permitted against employees for taking paid sick leave under the new law or for reporting complaints, testifying or instituting proceedings related to the law.

  • Poster: The U.S. Department of Labor will be creating a required posting within seven days of the enactment of the new law.

  • Penalties/Remedies: A violation of the law, including failure to pay or wrongful termination, is a minimum wage violation under the Fair Labor Standards Act.  The penalties include lost wages, an equivalent amount as liquidated damages, and attorney’s fees and costs. Intentional violations may result in up to a $10,000 fine and, for repeat offenders, up to six months in prison after a prior conviction.

  • No Social Security Taxes on Wages: The wages required to be paid for emergency sick leave are not taken into account for purposes of determining Social Security taxes owed by the employer.

  • Health Care Providers/Son or Daughter: Same broad definition as in the FMLA (e.g., doctors, licensed nurse practitioners, physician assistants, among many other health care providers)/(biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that leave is to commence).

 

Family and Medical Leave Act (FMLA) Expansion

  • FMLA has been amended to require employers with fewer than 500 employees and government employers to provide employees who have been on the job for at least 30 days with 12 weeks of job-protected leave for qualifying COVID-19 related absences, until December 31, 2020.

  • Small Business Exemptions Possible:

    • The U.S. Secretary of Labor may issue regulations to exempt small businesses with fewer than 50 employees (as measured under the FMLA) when the imposition of the new requirements would jeopardize the business as a going concern. (NO GUIDANCE IF OR WHEN SUCH EXEMPTION MAY OCCUR)

    • Such employers may not be sued in private actions by employees but are subject to civil and administrative actions by the U.S. Secretary of Labor.

    • There is also a limited exception to the job restoration requirement for employers with fewer than 25 employees discussed below.

  • Health Care Providers / Emergency Responders Exclusion: Employers of certain health care providers or emergency responders may elect to exclude such employees from the application of this rule.  The U.S. Secretary of Labor also has authority to issue regulations exempting such employees. 

  • Eligibility: All full-time, part-time, and temporary employees who have been employed with an employer for 30 calendar days.  No minimum number of hours worked required.

  • Paid v. Unpaid Leave:

    • An employee may elect to substitute any paid time off for the unpaid portion of leave (e.g., the first ten days), including the new emergency paid sick leave or existing PTO, vacation, personal days, sick days, etc. However, an employer cannot require it.

    • After the first ten days, the remaining time off, up to the 12-week maximum of FMLA leave, must be paid at two-third of the employee’s regular rate (using the same hours and rate of pay calculations described above for the Emergency Paid Sick Leave Act).

    • The paid FMLA leave is capped at no more than $200 per day and $10,000 total.

  • Notice: If the need for leave is foreseeable, an employee must provide notice as soon as practicable.

  • Restoration to Position:

    • Employers with 25 or more employees must return employees to the same or a substantially equivalent position under the existing FMLA rules.

    • Employers with less than 25 employees are not required to return the employee to work (after the leave) but only if each of the following conditions are met:

      • The employee takes leave to care for the employee’s child because the child’s school or other place of care has been closed, or the childcare provider of such child is unavailable due a COVID-19 related emergency declared by a Federal, State or local authority.

      • The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during period of leave.

      • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.

      • If reasonable efforts of employer fail, the employer makes reasonable efforts to contact the employee if an equivalent position described becomes available. This “contact period” remains in effect for the one-year period beginning on the earlier of: (a) the date on which the qualifying need related to a public health emergency concludes; or (b) the date that is 12 weeks after the date on which the employee’s leave commences.

  • No Discrimination or Retaliation: No discrimination or retaliation is permitted against employees for taking FMLA leave under the new law or for reporting complaints, testifying or instituting proceedings related to the law.

  • Penalties/Remedies:

    • A violation of the FMLA Expansion is a violation of the FMLA.

  • No Social Security Taxes on Wages: The wages required to be paid during the FMLA leave (after the first ten days) are not taken into account for purposes of determining Social Security taxes owed by the employer.

Pay and Leave for Employees Subject to Multi-Employer Collective Bargaining Agreements

  • Signatories to multi-employer collective bargaining agreements (CBAs) may comply with the Emergency Paid Sick Leave Act and FMLA Expansion if: (a) they comply with the applicable CBA; (b) they comply with the applicable bargaining obligations; (c) they make contributions to a multiemployer fund, plan or program based on the paid leave of each employee; and (d) the multiemployer fund pays the employee for leave pursuant to the FMLA Expansion and the Emergency Paid Sick Leave Act.

Paid Sick Leave and Paid FMLA Tax Credits

  • Employers will receive a refundable tax credit against the employer share of Social Security taxes equal to 100% of qualified paid sick leave wages paid for each calendar quarter to be paid by the Emergency Paid Sick Leave Act or the FMLA Expansion.

  • No Credits for Government Employers: The tax credits are not available State or local government employers.

  • Paid Sick Leave Caps:

    • For employees taking paid emergency sick leave to care for themselves, the amount of wages credited for each employee is capped at $511 per day.

    • For amounts paid to employees to care for someone else, the amount of wages credited for each employee is capped at $200 per day.

    • Employers should consult their tax professionals about these caps and additional caps on the credits in the proposed law.

  • Paid FMLA Caps: The amount of qualified paid FMLA wages taken into account for each employee is also capped at $200 per day and $10,000 for all calendar quarters.

  • Refunds: If the credits exceed the employer’s total liability under Section 3111(a) for all employees for any calendar quarter, the excess credit is refundable to the employer.

  • No Double Benefits: To prevent a double benefit, no deduction is allowed for the amount of the credit. In addition, no credit is allowed with respect to paid family leave wages for which a credit is otherwise allowed under the Tax Code.

  • Increase Credit for Health Plan Costs and Medicare Taxes: The amount of the tax credit has been increased to account for the employer’s expenses associated with maintaining group health plan coverage (to the extent excludable from employee income) allocable to the wages for which the tax credit is allowed.  It also has been increased to account for the 1.45% Medicare Tax owed on those additional wages.

  • Self-Employed Individuals: Self-employed individuals will receive similar credits based on what paid sick leave and/or paid FMLA leave they would have received had they been employed by a covered employer.

  • Guidance/Clarification: The U.S. Secretary of the Treasury is given broad authority to issue regulations and guidance necessary to carry out the tax credits.  The Secretary will also determine effective date.

Greater Access to Unemployment Insurance

  • $1 billion will be provided as emergency grants for States, including $500 million for administrative costs and another $500 million to be reserved for States that experience unemployment of at least 10%. To receive the reserve amounts, the States must amend their laws to ease unemployment eligibility requirements in like of COVID-19, such as waiting periods or work search requirements.

  • 100% federal funding of extended unemployment benefits for qualifying States.

  • Interest free loans for States to support unemployment benefits.

Free COVID-19 Testing Under Group Health Plans

  • Group health plans must provide free testing for SARS-CoV-2 or the virus that causes COVID-19.

  • Group health plans must not charge for products and services needed for diagnostic testing.

Employers May Instantly Begin to Take Advantage of Tax Credits Under the FFCRA

It’s now been five days since the President signed the FFCRA into law. Employees are self-quarantining due to exposure, or suspected exposure—to COVID-19—or because they live in states or cities with mandatory “shelter-in-place” orders preventing employees from reporting to work at businesses deemed “non-essential,” or because they must stay home with minor children whose schools and daycare facilities have closed due to concerns related to the COVID-19 pandemic.

With everyone struggling, some employers have been eager to provide immediate relief to employees under the FFCRA. But when are the tax credits available, since the law is not effective until April 2, 2020? The good news is: now!

The DOL, IRS, and Treasury Department jointly announced that employers covered by the FFCRA can instantly begin taking advantage of the payroll tax credits. The agencies announced:

  • assurance to employers that tax credit reimbursement will be “quick and easy to obtain,” with an “immediate dollar-for-dollar tax offset against payroll taxes” provided to employers covered by the FFCRA;

  • indicated that refunds will be swiftly issued when owed to alleviate the burden on US employers;

  • promised that employers will be able to seek an expedited advance from the IRS by submitting a claim form that will be released by the IRS next week; and

  • committed to releasing guidance next week instructing employers on how to retain am amount of payroll taxes equal to the amount of qualifying emergency sick and childcare leave that they pay under the FFCRA, rather than deposit those funds with the IRS.  

This info is found on the IRS website and the Treasury Department’s website. Thankfully, employers may begin taking advantage of the FFCRA’s tax benefits now. This may convince employers on the fence to provide employees with emergency paid leave related to COVID-19 in advance of April 2, 2020.

This article was researched and written by Shawn R. Biery and Brad J. Smith.  You can reach Shawn at sbiery@keefe-law.com or 312-756-3701 and you can reach Brad at bsmith@keefe-law.com or 312-756-3714  with any questions, or contact any of the attorneys at Keefe, Campbell, Biery & Associates with any questions. 

 

 Subject: Updates on Court Closings and Mechanisms to Keep Your Claims On Track. AS THINGS CONTINUE TO CHANGE, our primary desire is for everyone to practice self-care and remain safe and healthy during this anxious time.  Keefe, Campbell, Biery & Associates is still on the job and open for business.

Synopsis: As we have noted in our updates published for years, Keefe, Campbell, Biery & Assoc is fully capable of remotely managing our claims which has been a strong component in our past ability to be at status and hearing calls across the Midwest and also to be able to rapidly respond to inquiries on the fly. On March 20, Governor Pritzker issued Executive Order 2020-10 which in layman’s terms orders all state residents to “shelter in place” and stay at home to the extent possible, and leave only for Essential Activities, Essential Governmental Functions, or to operate Essential Business and Operations. The 9 page Order then does reference a multitude of activities and functions which are considered Essential. The current Order extends THROUGH APRIL 7, 2020.

Editor’s comment:  While we are making our efforts to continue to work remotely as much as possible, our stellar team is working and we are at full capacity for our defense clients in the five States we are licensed. We long ago invested in the technology for our remote work capacity and that prior foresight allows us to continue with availability during this worldwide crisis.

Essential services remain open including essential state and local government functions and law enforcement as well as well as offices which provide government programs and services. Other essential businesses remain open include but are not necessarily limited to:

  • Healthcare and Public Health Operations: Working at or obtaining services from hospitals; clinics; dental offices; pharmacies; public health entities; healthcare manufacturers and suppliers; blood banks; medical cannabis facilities; reproductive health care providers; eye care centers; home healthcare services providers; mental health and substance use providers; ancillary healthcare services — including veterinary care and excluding fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities

  • Human Services Operations: any provider funded by DHS, DCFS or Medicaid; long-term care facilities; home-based and residential settings for adults, seniors, children, and/or people with disabilities or mental illness; transitional facilities; field offices for food, cash assistance, medical coverage, child care, vocational services or rehabilitation services; developmental centers; adoption agencies; businesses that provide food, shelter, and social services and other necessities of life for needy individuals — excluding day care centers, day care homes, group day care homes and day care centers licensed as specified in Section 12(s) of the order

  • Essential Infrastructure: Working in food production, distribution and sale; construction; building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical; distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and internet, video, and telecommunications systems

  • Stores that sell groceries and medicine

  • Food, beverage and cannabis production and agriculture

  • Organizations that provide charitable and social services

  • Media

  • Gas stations and businesses needed for transportation

  • Financial institutions

  • Hardware and supply stores

  • Critical trades, including plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers that maintain the safety, sanitation and essential operation of residences, Essential Activities, and Essential Businesses and Operations

  • Mail, post, shipping, logistics, delivery and pick-up services

  • Educational institutions, for purposes of facilitating distance learning, performing critical research, or performing essential functions

  • Laundry services

  • Restaurants for consumption off-premises

  • Supplies to work from home

  • Supplies for Essential Businesses and Operations

  • Transportation, for purposes of Essential Travel

  • Home-based care and services

  • Residential facilities and shelters

  • Professional services

  • Day care centers for employees exempted by this Executive Order

  • Manufacture, distribution, and supply chain for critical products and industries

  • Critical labor union functions

  • Hotels and motels, to the extent used for lodging and delivery or carry-out food services

  • Funeral services

The Order officially closes:

  • Dine-in restaurants

  • Bars and nightclubs

  • Entertainment venues

  • Gyms and fitness studios

  • Public events and gatherings

  • Convention Centers

  • Licensed child care centers and all childcare homes serving more than six children

In Illinois, residents are allowed to leave their homes for essential needs:

  • For health and safety: seeking emergency services, obtaining medical supplies or medication or visiting a health care professional

  • For necessary supplies and services: obtaining groceries and food, household consumer products, supplies they need to work from home, and products necessary to maintain the safety, sanitation and essential operation of residences

  • For outdoor activity: walking, hiking, running or biking – including going to public parks and open outdoor recreation areas, except for playgrounds

  • For certain types of work: Providing essential products and services at Essential Businesses or Operations or otherwise carrying out activities specifically permitted, including Minimum Basic Operations

  • To take care of others: Caring for or transporting a family member, friend or pet in another household

Most of the world is on some type of shut down and the Courts and WC hearing bodies in IL, IN, IA, WI and MI are limiting in person hearings and appearances. However businesses are doing what they can to continue to take care of employees and maintain income as best possible. While things seem to be changing sometimes within hours, we are still actively engaging our peers in the Plaintiff/Petitioner bar to keep claims working toward closure. Deadlines are being met and filings can still be perfected. We note Arbitrators are considering telephonic pre-trials and depositions remain on schedule.  

Chairman Michael J. Brennan of the Workers’ Compensation Commission called for a vote to suspend all normal in-person arbitration and Commission review operations through Tuesday March 31, 2020. The Commission did also temporarily suspend hearing operations however they also have a mechanism for Emergency Hearings which is in place and we are prepared for all defense needs. Please be advised that as it concerns pre-trials, parties must go through the chairman’s office, as is the process for emergency hearings. The chairman has been adapting to the situation rapidly and has been ahead of the curve in making sure true emergencies are addressed. We will provide updates as the situation evolves on your specific individual claims.

The Circuit Court of Cook County will be closed from March 17, 2020 through April 15, 2020, or any other date that may be set by order of the Chief Judge.  Matters will generally be continued 30 days from the date previously scheduled.  Two (2) judges will be sitting each day.  The judges will rotate, such that the same judge will likely not be sitting from one day to the next.  The judges will only hear true emergencies (e.g.: domestic violence, kidnapping.) If you have an active case, you will be receiving a message from your attorney regarding your newly scheduled court date, as well as any other pertinent information.

Most courts in most venues are practicing the same extremely limited docket and the Chicago Tribune is also keeping a running list of general closures in the Chicagoland area which can be accessed here: https://www.chicagotribune.com/coronavirus/ct-cb-coronavirus-chicago-illinois-cancellations-closings-20200304-xsy3xn6grndu3hq7eyihpkznwi-story.html

This article was researched and written by Shawn R. Biery and you can reach Shawn at sbiery@keefe-law.com or 312-756-3701 with any questions, or contact any of the attorneys at Keefe, Campbell, Biery & Associates with any questions. 

Synopsis: Working in the virtual world is quickly becoming the norm during the COVID-19 threat. That includes medicolegal issues, such as independent medical evaluations, expert review work, and medicolegal consulting.

Editor’s comment: This article is based on an article and coming webinar from WorkersCompensation.com. I am putting it out there for WC folks interested in tele-IME’s.

While that can be a great benefit to preventing the spread of the virus, many medical professionals are not equipped to handle the change, especially so suddenly.

“Many physicians performing IMEs, Agreed Medical Examinations (AME), and Qualified Medical Evaluations (QME) are older and, therefore, at higher risk. Older physicians may be less likely to have the technology skills that millennials have,” explained Christopher Brigham, MD. “Striving to slow the spread of COVID-19, our experts are looking to telemedicine as the new paradigm – including virtual independent medical evaluations. These changes impact all stakeholders, and this will be the focus of the panel discussion.”

Brigham, who has been working via telemedicine for two decades, will present new approaches to virtual IMEs, along with the pros and cons of doing them virtually. Following his talk will be a panel discussion with leading stakeholders. Judge David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings; Michael B. Stack, Principal of Amaxx, LLC; attorneys, medicolegal experts and claims managers will be involved.

The webinar takes place this Wednesday, March 25 at 3:00 EDT.

Handling Workers’ Compensation Cases Ethically
Space is limited. Reserve your Webinar seat now!
TX CE’s Available

Date:        Tuesday, April 7, 2020
Time:        11:30 AM – 12:30 PM CST

Woodlake Medical Management is excited to sponsor this free educational webinar.
This presentation, which qualifies for Texas CE credits, is designed as a general primer on Ethics when dealing with workers’ compensation cases as the focus, and dealing with litigation in general. With real world examples to highlight the many points, anyone involved in claims management at any level should be able to take away some key points to further sharpen their perspective in managing their universe of claims effectively and ethically.

About Shawn Biery: 
Shawn R. Biery received his JD from Thomas Jefferson School of Law in 2001. He was a founding member of Keefe, Campbell, Biery & Associates in 2003 after practicing in employment law and patent law firms prior. Shawn utilizes strategies similar to those he developed while an active duty US Marine conducting desert warfare training. In addition to his work as a courtroom litigator, Shawn is also an adjunct law professor and regular speaker regarding workers’ compensation and employment law issues. 
Keefe, Campbell, Biery & Associates, LLC was started in 2003 and since forming, have strived to continue to maintain their initial goal of providing high-quality and cost-effective civil litigation services for the defense of self-insured employers and insurance carriers without forgetting that the practice of law is a service profession.

Claims Adjusters, Claims Managers, Nurse Case Managers and Risk Managers/Employers are encouraged to attend.

The following CEs will be offered: 

  • 1 hour Texas Adjuster (Ethics)

If you have any specific questions about this topic that you would like to have addressed in this presentation, please feel free to email them to chris@woodlakemedical.com prior to the webinar.
 
There is limited capacity for this webinar, so please register today!
 Registration Link: https://attendee.gotowebinar.com/register/8071447095226619660

Sponsor:

 

Woodlake Medical Management was founded in 1994 with one simple purpose: To provide quick IME appointments scheduled with a wide variety of doctors, while efficiently delivering well-explained, definitive medical opinions throughout the Midwest. We are a group of dedicated, friendly people who strive to consistently treat you so well that you look forward to doing business with us.